Chapter 6 Criminal Defenses, Part 2

M’Naghten Insanity Defense

The M’Naghten insanity defenseAn insanity defense that excuses criminal conduct when a mental defect or disease caused the defendant not to know the nature or quality of the criminal act, or that the act was wrong. Also called the right-wrong test., also called the right-wrong test, is the most common insanity defense in the United States. It is also the oldest and was created in England in 1843. The defense is named after Daniel M’Naghten. M’Naghten was under the paranoid delusion that the Prime Minister of England, Sir Robert Peel, was trying to kill him. When he tried to shoot Sir Peel from behind, he inadvertently shot Sir Peel’s Secretary, Edward Drummond, who thereafter died. M’Naghten was put on trial for murder and, to the shock of the nation, the jury found him not guilty by reason of insanity.Queen v. M’Naghten, 10 Clark & F.200, 2 Eng. Rep. 718 (H.L. 1843), accessed November 29, 2010, http://users.phhp.ufl.edu/rbauer/forensic_neuropsychology/mcnaghten.pdf. After a public outcry at this verdict, the British House of Lords developed a test for insanity that remains relatively intact today.

The M’Naghten insanity defense is cognitive and focuses on the defendant’s awareness, rather than the ability to control conduct. The defense requires two elements. First, the defendant must be suffering from a mental defect at the time he or she commits the criminal act. The mental defect can be called a “defect of reason” or a “disease of the mind,” depending on the jurisdiction.Iowa Code § 701.4, accessed November 30, 2010, http://coolice.legis.state.ia.us/cool-ice/default.asp?category=billinfo&service=iowacode&ga=83&input=701. Second, the trier of fact must find that because of the mental defect, the defendant did not know either the nature and quality of the criminal act or that the act was wrong.

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in general, the defendant must be cognitively impaired to the level of not knowing the nature and quality of the criminal act, or that the act is wrong. Some common examples of mental defects and diseases are psychosis, schizophrenia, and paranoia.

Jurisdictions vary as to the level of awareness the defendant must possess. Some jurisdictions use the term “know,” or “understand,”Cal. Penal Code § 25, accessed November 30, 2010, http://law.onecle.com/california/penal/25.html. while others use the term “appreciate.”Ala. Code § 13A-3-1, accessed November 30, 2010, http://law.onecle.com/alabama/criminal-code/13A-3-1.html. If know or understand is the standard, the trier of fact must ascertain a basic level of awareness under the attendant circumstances. If appreciate is the standard, the trier of fact must analyze the defendant’s emotional state, and evidence of the defendant’s character or personality may be relevant and admissible.

A defendant does not know the nature and quality of a criminal act if the defendant is completely oblivious to what he or she is doing. This is quite rare, so most defendants claiming insanity choose to assert that they did not know their act was wrong. However, jurisdictions differ as to the meaning of “wrong.” Some jurisdictions define wrong as “legally wrong,” meaning the defendant must be unaware that the act is against the law.State v. Crenshaw, 659 P.2d 488 (1983), accessed November 30, 2010, http://lawschool.courtroomview.com/acf_cases/8790-state-v-crenshaw. Others define wrong as “legally and morally wrong,” meaning the defendant must also be unaware that the act is condemned by society.State v. Skaggs, 586 P.2d 1279 (1978), accessed November 30, 2010, http://www.leagle.com/xmlResult.aspx?xmldoc=1978587120Ariz467_1470.xml&docbase=CSLWAR1-1950-1985. Generally, the only instance where the defendant must be “morally wrong,” standing alone, is when the defendant claims that the conduct was performed at the command of God, which is called the deific defenseThe defendant claims God commanded him or her to commit the crime..State v. Worlock, 569 A.2d 1314 (1990), accessed November 30, 2010, http://www.leagle.com/xmlResult.aspx?xmldoc=1990713117NJ596_1172.xml&docbase=CSLWAR2-1986-2006. Whether the standard is legally wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide or escape, it is apparent that the defendant knew the difference between right and wrong, defeating the claim of insanity under M’Naghten.

Example of a Case Appropriate for the M’Naghten Insanity Defense

Andrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub. Andrea promptly phones 911 and tells the operator that her children are dead. The operator dispatches an emergency call to law enforcement. When law enforcement officers arrive at Andrea’s house, she informs them that she killed her children so that they could leave this earth and enter heaven.

Andrea thereafter claims she is not guilty for killing her children by reason of insanity. Andrea could be successful if the jurisdiction in which she killed her children recognizes the M’Naghten insanity defense. Andrea suffers from a mental defect, schizophrenia. In addition, there is no evidence indicating Andrea knew her conduct was wrong, such as an attempted escape, or cover-up. In fact, Andrea herself contacted law enforcement and immediately told them about her criminal acts. Thus both of the M’Naghten elements appear to be present, and Andrea’s conduct may be excusable under the circumstances.

Figure 6.1 M’Naghten Insanity Defense

Irresistible Impulse Insanity Defense

Another variation of the insanity defense is the irresistible impulse defenseAn insanity defense that excuses criminal conduct when a mental defect or disease caused the defendant to lose the ability to control his or her conduct or conform his or her conduct to the law.. This defense has lost popularity over the years and is rejected by most of the states and the federal government.18 U.S.C. § 17, accessed November 28, 2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000-.html. In some cases, the irresistible impulse insanity defense is easier to prove than the M’Naghten insanity defense, resulting in the acquittal of more mentally disturbed defendants.

The irresistible impulse insanity defense generally supplements M’Naghten, so the focus is on the defendant’s awareness (cognitive) and the defendant’s will (ability to control conduct). In jurisdictions that recognize the irresistible impulse insanity defense, the first element is the same as M’Naghten; the defendant must suffer from a mental defect or disease of the mind. However, the second element adds the concept of volition, or free choice. If the defendant cannot control his or her conduct because of the mental defect or disease, the defendant’s conduct is excused even if the defendant understands that the conduct is wrong.State v. White, 270 P.2d 727 (1954), accessed November 30, 2010, http://scholar.google.com/scholar_case?case=15018626933471947897&hl=en&as_sdt=2&as_vis=1&oi=scholarr. This is a softer stance than M’Naghten, which does not exonerate a defendant who is aware conduct is wrong. The challenge for the trier of fact in an irresistible impulse jurisdiction is distinguishing between conduct that can be controlled and conduct that cannot.

Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense

Jolene, who has been diagnosed with paranoia, decides she must cut off all her sorority sisters’ hair because they are “out to get her.” She drives to the sorority house with a Taser and scissors in her backpack. Her plan is to subdue each sister with the stun gun and then hack off her hair. As she arrives at the house, she sees Agnes, one of her sorority sisters, trip and fall in the parking lot, ripping her cashmere sweater and scraping her chin. Feeling a stab of pity, Jolene ignores Agnes and walks hurriedly toward the building. As she enters, Ashley, another sorority sister, turns, scowls at Jolene, and barks, “What in the world are you wearing? You look like you just rolled out of bed!” Jolene pulls the stun gun out of her backpack and shoots Ashley. While Ashley is lying on the floor, Jolene takes out the scissors and cuts Ashley’s hair off at the scalp.

Jolene claims she is not guilty for assault and battery of Ashley by reason of insanity. If Jolene attacked Ashley in a jurisdiction that recognizes the irresistible impulse insanity defense, she probably will not be successful with her claim. Jolene has been diagnosed with paranoia, which is a mental defect or disease. However, Jolene seems aware that shooting someone with a stun gun and cutting off her hair is wrong because she spared Agnes based on pity. In addition, Jolene’s choice not to attack Agnes indicates she has control over her conduct. Thus Jolene is cognitive of the difference between right and wrong and has the will to suppress criminal behavior, defeating any claim of insanity under the irresistible impulse insanity defense.

Figure 6.2 Irresistible Impulse Insanity Defense

The Substantial Capacity Test

The substantial capacity testAn insanity defense that excuses criminal conduct when a mental disease or defect caused the defendant to lose the substantial capacity to appreciate the criminality of conduct, or to control conduct or conform conduct to the law. Also called the Model Penal Code or ALI insanity defense. is the insanity defense created by the Model Penal Code. The Model Penal Code was completed in 1962. By 1980, approximately half of the states and the federal government adopted the substantial capacity test (also called the Model Penal Code or ALI defense).Carol A. Rolf, “From M’Naghten to Yates—Transformation of the Insanity Defense in the United States—Is It Still Viable?” Rivier College Online Academic Journal 2 (2006), accessed December 1, 2010, http://www.rivier.edu/journal/ROAJ-2006-Spring/J41-ROLF.pdf. However, in 1982, John Hinckley successfully claimed insanity using the substantial capacity test in his federal trial for the attempted murder of then-President Ronald Reagan. Public indignation at this not-guilty verdict caused many states and the federal government to switch from the substantial capacity test to the more inflexible M’Naghten standard.18 U.S.C. § 17, accessed November 28, 2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000-.html. In addition, jurisdictions that switched to M’Naghten also shifted the burden of proving insanity to the defendant.Carol A. Rolf, “From M’Naghten to Yates—Transformation of the Insanity Defense in the United States—Is It Still Viable?” Rivier College Online Academic Journal 1 (2006), accessed December 1, 2010, http://www.rivier.edu/journal/ROAJ-2006-Spring/J41-ROLF.pdf. The defendant’s burden of proof for the insanity defense is discussed shortly.

The substantial capacity test is as follows: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law” (Model Penal Code § 4.01(1)). The defense has two elements. The first element requires the defendant to have a mental disease or defect, like the M’Naghten and irresistible impulse insanity defenses. The second element combines the cognitive standard with volitional, like the irresistible impulse insanity defense supplementing the M’Naghten insanity defense.

In general, it is easier to establish insanity under the substantial capacity test because both the cognitive and volitional requirements are scaled down to more flexible standards. Unlike the M’Naghten insanity defense, the substantial capacity test relaxes the requirement for complete inability to understand or know the difference between right and wrong. Instead, the defendant must lack substantial, not total, capacity. The “wrong” in the substantial capacity test is “criminality,” which is a legal rather than moral wrong. In addition, unlike the irresistible impulse insanity defense, the defendant must lack substantial, not total, ability to conform conduct to the requirements of the law. Another difference in the substantial capacity test is the use of the word “appreciate” rather than “know.” As stated previously, appreciate incorporates an emotional quality, which means that evidence of the defendant’s character or personality is relevant and most likely admissible to support the defense.

Example of the Substantial Capacity Test

Loreen has been diagnosed with psychosis and spent most of her life in a mental hospital. While at the mental hospital, Loreen made friends with many of the patients and health-care personnel. From time to time, Loreen would play jokes on these friends. Most of these “jokes” consisted of putting her antidepressants into their food. Loreen was always reprimanded and often sternly punished for these escapades. After her release from the mental hospital at age twenty-one, Loreen falls in love with Aidan, a man who works in a bookstore near her apartment. Loreen decides to make Aidan fall in love with her by feeding him a magic potion, which she concocts out of a mixture of her antidepressants. Loreen buys a book from Aidan and casually asks if he would like her to buy him a coffee. Aidan shrugs and says, “Sure, but I don’t have a break for another two hours.” Loreen offers to bring him the coffee. Before bringing the drink to Aidan, she puts her “magic potion” in it. While Aidan is sipping the coffee, Loreen declares her love for him. She then states, “I know I shouldn’t have, but I put a love potion in your coffee. I hope it doesn’t hurt you.” Aidan becomes seriously ill after drinking the coffee and is hospitalized.

Loreen claims she is not guilty for battering Aidan by reason of insanity. If Loreen is in a jurisdiction that recognizes the substantial capacity test, she may be successful with her claim. Loreen has a mental disease or defect, psychosis. Loreen’s statement to Aidan indicates that she lacks the substantial capacity to appreciate the criminality of her conduct. Note that if Loreen were in a M’Naghten jurisdiction, her statement “I know I shouldn’t have” could prove her awareness that her conduct was wrong, defeating her claim. In addition, Loreen’s behavior at the mental hospital indicates that she lacks the substantial capacity to conform or control her conduct. Even after a lifetime of being punished over and over for mixing her meds together and putting them in other people’s food or drink, Loreen still does it. Lastly, in a substantial capacity jurisdiction, testimony from Loreen’s friends at the mental hospital may be admissible to support her claim of insanity, and her lack of ability to “appreciate” the criminality of her conduct.

Figure 6.3 Substantial Capacity Insanity Defense

The Durham Insanity Defense

The Durham insanity defenseAn insanity defense that excuses criminal conduct when it is caused by a mental disease or defect. Also called the product test. is used only in New Hampshire and has been the established insanity defense in New Hampshire since the late 1800s. The Durham defense, also called the Durham rule or the product test, was adopted by the Circuit Court of Appeals for the District of Columbia in the case of Durham v. U.S., 214 F.2d 862 (1954). The defense set forth in that case is as follows: “[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”Durham v. U.S., 214 F.2d 862, 875 (1954), accessed December 2, 2010, http://scholar.google.com/scholar_case?case=1244686235948852364&hl=en&as_sdt=2&as_vis=1&oi=scholarr. However, the court failed to give definitions for product, mental disease, or mental defect. Thus the Durham insanity defense is extremely difficult to apply, and the D.C. Circuit rejected it in 1972 in the case of U.S. v. Brawner, 471 F.2d 969 (1972), which was later superseded by federal statute.18 U.S.C. § 17, accessed November 28, 2010, http://www.law.cornell.edu/uscode/18/usc_sec_18_00000017----000-.html.

In general, the Durham insanity defense relies on ordinary principles of proximate causation. The defense has two elements. First, the defendant must have a mental disease or defect. Although these terms are not specifically defined in the Durham case, the language of the judicial opinion indicates an attempt to rely more on objective, psychological standards, rather than focusing on the defendant’s subjective cognition. The second element has to do with causation. If the criminal conduct is “caused” by the mental disease or defect, then the conduct should be excused under the circumstances.

Example of the Durham Insanity Defense

Arianna has been diagnosed with paranoia. Most psychiatric experts agree that individuals afflicted with paranoia unreasonably believe that the human population is “out to get them.” Arianna works under the direct supervision of Nora, who has a physical condition called “walleye.” Nora’s walleye makes it appear that she is looking to the side when she addresses people. Arianna gradually becomes convinced that Nora is communicating secret messages to their coworkers when she is speaking to Arianna. Arianna is genuinely frightened that Nora is telling their coworkers to kill her, and she decides she needs to defend herself. Arianna brings a gun to work one day, and when Nora begins talking to her about her tendency to take overlong lunches, Arianna pulls the gun out of her cubicle and shoots and kills Nora.

Arianna claims she is not guilty for killing Nora by reason of insanity. If Arianna killed Nora in New Hampshire, she might be successful with her claim. Arianna has a mental disease or defect, paranoia. Arianna can probably produce evidence, such as psychiatric expert testimony, that her paranoia “caused” or “produced” her criminal conduct, which was shooting Nora. Thus a trier of fact could acquit Arianna on the grounds that her conduct is excusable under these circumstances.

Figure 6.4 Durham Insanity Defense

Proving Insanity

There is generally a presumption that criminal defendants are sane, just as there is a presumption that they are innocent. Therefore, at a minimum, a defendant claiming insanity must produce evidence that rebuts this presumption. Some states require the prosecution to thereafter prove sanity beyond a reasonable doubt or to a preponderance of evidence.James R. Elkins and students at the West Virginia University College of Law, “Insanity Defense,” West Virginia Homicide Jury Instructions Project, accessed December 2, 2010, http://myweb.wvnet.edu/~jelkins/adcrimlaw/insanity.html.

Post-Hinckley, many states have converted the insanity defense into an affirmative defense. Thus as discussed in Chapter 5 "Criminal Defenses, Part 1", the defendant may also have the burden of persuading the trier of fact that he or she is insane to a preponderance of evidence.New Jersey Jury Instruction on Insanity, Based on N.J. Stat. Ann. § 2C: 4-1, accessed November 30, 2010, http://www.judiciary.state.nj.us/criminal/charges/respons1.pdf. The federal government and some other states require the defendant to prove insanity by clear and convincing evidence, which is a higher standard than preponderance of evidence.Tenn. Code Ann. § 39-11-501, accessed December 2, 2010, http://law.justia.com/tennessee/codes/2010/title-39/chapter-11/part-5/39-11-501.

Diminished Capacity

A claim of diminished capacityAn imperfect failure of proof defense that reduces first-degree murder to second-degree murder or manslaughter if the defendant did not have the mental capacity to form first-degree murder criminal intent. differs from the insanity defense. Diminished capacity is an imperfect failure of proof defense recognized in a minority of jurisdictions. Diminished capacity could reduce a first-degree murder charge to second-degree murder or manslaughter if the defendant lacks the mental capacity to form the appropriate criminal intent for first-degree murder.

In California, diminished capacity was abolished as an affirmative defense after San Francisco Supervisor Dan White used it successfully in his trial for the murder of fellow Supervisor Harvey Milk. A jury convicted White of voluntary manslaughter rather than first-degree premeditated murder after reviewing evidence that proved his diet of junk food (Twinkies) created a chemical imbalance in his brain. In the aftermath of this highly publicized trial, California passed legislation eliminating the diminished capacity defense and limiting the admissibility of evidence of diminished capacity only to sentencing proceedings.Cal. Penal Code § 25, accessed December 2, 2010, http://law.onecle.com/california/penal/25.html.

Similar to diminished capacity is the syndrome defenseA failure of proof defense that claims a syndrome prevented the defendant from forming the requisite intent for the crime.. A syndrome that negates the requisite intent for the crime could function as a failure of proof defense in a minority of jurisdictions. Some common examples of syndromes the American Psychiatric Association recognizes in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), are antisocial personality disorder, posttraumatic stress disorder, and intermittent explosive disorder. Some common examples of syndromes identified but not recognized in DSM-IV are battered woman or battered wife syndrome (discussed in Chapter 5 "Criminal Defenses, Part 1") and caffeine withdrawal. Although successful use of the syndrome defense is rare, at least one case has excused a defendant’s drunken driving and assault and battery against a police officer because of premenstrual syndrome (PMS).“Successful PMS Defense in Virginia Case Revives Debate,” Baltimore.com website, accessed June 16, 2011, http://articles.baltimoresun.com/1991-06-16/news/1991167033_1_pms-richter-defense.

Mental Competence to Stand Trial

The insanity defense is different from mental competence to stand trialThe defendant cannot be put on trial if the defendant is incapable of understanding the proceedings against him or her or assisting in his or her defense because of mental incompetence.. The insanity defense pertains to the defendant’s mental state when he or she commits the crime. If the insanity defense is successful, it exonerates the defendant from guilt. Mental competence to stand trial is analyzed at the time the trial is to take place. If the defendant is mentally incompetent to stand trial, the trial is delayed until the defendant regains competency. Although a detailed discussion of mental competence to stand trial is beyond the scope of this book, in general, a criminal defendant must be able to understand the charges against him or her, and be able to assist in his or her defense. As the Model Penal Code provides, “[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures” (Model Penal Code § 4.04). A defendant who is mentally incompetent at the time of trial is subject to mental health treatment or even involuntary medication until competence is regained.

Guilty but Mentally Ill

Post-Hinckley, some states adopted the guilty but mentally ill verdictA verdict that deems the criminal defendant mentally ill and orders the criminal defendant to mental health treatment while incarcerated.. A defendant who is found guilty but mentally ill is not acquitted but punished and treated for mental health simultaneously while in prison. Typically, the guilty but mentally ill verdict is available only when the defendant fails to prove legal insanity, and requires the defendant to prove mental illness at the time of the crime to a preponderance of evidence.725 ILCS § 5/115-4(j), accessed December 3, 2010, http://law.onecle.com/illinois/725ilcs5/115-4.html.

Example of Guilty but Mentally Ill

Review the example with Jolene in Section 6 "Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense". In this example, Jolene has been diagnosed with paranoia, but shows an ability to control and understand the wrongfulness of her conduct, so she probably will not be successful with an irresistible impulse insanity defense. If Jolene is in a state that offers a guilty but mentally ill verdict, Jolene may be an appropriate candidate because she was mentally ill at the time she assaulted and battered her sorority sister. If Jolene is found guilty but mentally ill, she will be treated for her mental health simultaneously while serving any prison sentence.

Figure 6.5 Effects (Circular Diagram) of Mental Competency Claims

Figure 6.6 Diagram of the Insanity Defense

Hasan Fort Hood Shooting Video

Does Hasan Have an Insanity Defense? The Judge Rules!

In this news story on the legal implications of the Fort Hood shootings, Judge Napolitano discusses the upcoming prosecution of Nidal Hasan and the possibility of an insanity defense.Angela K. Brown, “Fort Hood Shooting Suspect Major Nidal Hasan to Be Arraigned,” Huffingtonpost.com website, accessed August 26, 2011, http://www.huffingtonpost.com/2011/07/20/fort-hood-shooting-suspect-in-court_n_904274.html.

(click to see video)

Disposition of the Legally Insane

The not guilty by reason of insanity verdict means that the defendant is absolved from criminal responsibility and devoid of any criminal record for the offense. However, it does not mean that the defendant is free to return to society.

In several states and federally, a defendant who is found not guilty by reason of insanity is automatically committed to a treatment facility until there is a determination that mental health has been restored.18 U.S.C. § 4243(a), accessed December 3, 2010, http://law.onecle.com/uscode/18/4243.html. This is also the Model Penal Code approach. As the Model Penal Code states in § 4.08(1), “[w]hen a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the Court shall order him to be committed to the custody of the Commissioner of Mental Hygiene [Public Health] to be placed in an appropriate institution for custody, care and treatment.”

Other states have a hearing on sanity after the judgment or verdict of not guilty by reason of insanity is returned. If the defendant is deemed mentally competent at the hearing, he or she is released. If the defendant is found mentally ill at the hearing, he or she is committed to the appropriate treatment facility.Ohio Rev. Code Ann. § 2945.40, accessed December 3, 2010, http://codes.ohio.gov/orc/2945.40.

Temporary Insanity

Many states also recognize temporary insanityThe defendant was insane when the crime was committed, but later regained sanity., which does not differ in analysis from permanent insanity except for the duration of the mental illness.Aaron Malo, Matthew P. Barach, and Joseph A. Levin, “The Temporary Insanity Defense in California,” hastings.edu website, accessed December 3, 2010, http://www.uchastings.edu/public-law/docs/tempinsanity.pdf. In a state that recognizes temporary insanity, the elements of the state’s insanity defense, either M’Naghten, irresistible impulse, substantial capacity, or Durham, must be present at the time the crime was committed. If the defendant is found not guilty by reason of insanity for the criminal offense, but regains mental competence at the time of prosecution, the defendant is released after the verdict is rendered. The trial court will order release based on the commitment procedure discussed in Section 6.1.9 "Disposition of the Legally Insane".

Infancy

Many states recognize the defense of infancyA defense that asserts the defendant is too young to form the requisite intent for the crime.. Infancy asserts that the defendant is not subject to criminal prosecution because he or she is too young to commit a crime. The policy supporting the infancy defense is the belief that juvenile defendants are too immature to form criminal intent. The infancy defense is typically statutory and can be perfect or imperfect, depending on the jurisdiction.

States divide up the jurisdiction of criminal defendants between juvenile courts and adult courts. Juvenile court systems generally retain jurisdiction over criminal defendants under the age of sixteen, seventeen, or eighteen, with exceptions. The Model Penal Code position is that “[a] person shall not be tried for or convicted of an offense if: (a) at the time of the conduct charged to constitute the offense he was less than sixteen years of age, [in which case the Juvenile Court shall have exclusive jurisdiction]” (Model Penal Code § 4.10(1)(a)).

The primary purpose of a juvenile court adjudication is rehabilitation. The goal is to reform the minor before he or she becomes an adult. In most states, the infancy defense protects a youthful defendant from criminal prosecution as an adult; it does not prohibit a juvenile adjudication. Most minor defendants are adjudicated in juvenile court, so the infancy defense is rarely used.

Juveniles can be prosecuted as adults under certain specified circumstances. At early common law, criminal defendants were divided into three age groups. Those under the age of seven were deemed incapable of forming criminal intent, and could not be criminally prosecuted. Defendants between the ages of seven and fourteen were provided a rebuttable presumption that they lacked the mental capacity to form criminal intent. Once a defendant turned fourteen, he or she was subject to an adult criminal prosecution. Modern statutes codify the adult criminal prosecution standard for different age groups. Some states follow the early common law and set up rebuttable and irrebuttable presumptions based on the defendant’s age.RCW 9A.04.050, accessed December 6, 2010, http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.04.050. Other states set forth a minimum age, such as fourteen or sixteen, and defendants who have reached that age are prosecuted as adults.N.Y. Penal Law § 30.00, accessed December 6, 2010, http://law.onecle.com/new-york/penal/PEN030.00_30.00.html.

When a juvenile court has jurisdiction, the jurisdiction must be forfeited if the juvenile is to be prosecuted as an adult. This process is called waiverThe process by which a juvenile court forfeits jurisdiction over a minor.. Juvenile courts can have exclusive jurisdiction over minors under eighteen, or concurrent or simultaneous jurisdictionTwo courts have jurisdiction over an individual simultaneously. with adult courts, depending on the state.

States vary as to the waiver procedure. Some states allow judges to use discretion in granting the waiver, while others vest this power in the legislature or the prosecutor.Melissa Sickmund, OJJDP National Report Series Bulletin, “Juveniles in Court,” National Center for Juvenile Justice website, accessed December 7, 2010, http://www.ncjrs.gov/html/ojjdp/195420/page4.html. A few factors serve as criteria supporting the waiver to adult criminal court: the nature of the offense, the sophistication it requires, the defendant’s criminal history, and the threat the defendant poses to public safety.Kent v. United States, 383 U.S. 541 (1966), accessed December 7, 2010, http://scholar.google.com/scholar_case?case=5405024647930835755&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Intoxication

IntoxicationA mental or physical disturbance caused by alcohol, illegal drugs, or legal drugs. is another defense that focuses on the defendant’s inability to form the requisite criminal intent. In general, intoxication can be based on the defendant’s use of alcohol, legal drugs, or illegal drugs. The Model Penal Code defines intoxication as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body” (Model Penal Code § 2.08(5) (a)). The intoxication defense could be perfect or imperfect, statutory or common law, depending on the jurisdiction.

Intoxication is a state that is achieved either voluntarily or involuntarily. Most states frown on the use of voluntary intoxication as a defense, and allow it only to reduce the severity of the crime charged.N.Y. Penal Law § 15.25, accessed December 7, 2010, http://law.onecle.com/new-york/penal/PEN015.25_15.25.html. Recall from Chapter 4 "The Elements of a Crime" that if a defendant voluntarily undertakes action, such as drinking or ingesting drugs, the voluntary act requirement is met. Conduct that occurs after the voluntary intoxication probably is not excused unless the intoxication prevents the defendant from forming the criminal intent required for the offense.Or. Rev. Stat. § 161.125, accessed December 7, 2010, https://www.oregonlaws.org/ors/161.125. If the crime charged is a reckless intent crime, voluntary intoxication rarely provides even an imperfect defense.Tenn. Code Ann. § 39-11-503(b), accessed December 7, 2010, http://www.lawserver.com/law/state/tennessee/tn-code/tennessee_code_39-11-503.

Involuntary intoxication is more likely to provide a defense than voluntary intoxication. Generally, a defendant can claim involuntary intoxication if he or she ingested the drug or alcohol unknowingly or under force, duress, or fraud.California Jury Instructions No. 3427, accessed December 7, 2010, http://www.justia.com/criminal/docs/calcrim/3400/3427.html. Involuntary intoxication could affect the defendant’s ability to form criminal intent, thus negating specific intent, dropping murder a degree, or converting murder to manslaughter. The Model Penal Code equates involuntary intoxication with the substantial capacity test, providing “[i]ntoxication which (a) is not self-induced…is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law” (Model Penal Code § 2.08 (4)).

Example of the Intoxication Defense

Clint slips a date rape drug into Delilah’s drink at a fraternity party. Delilah is twenty-one and legally able to consume alcohol. The date rape drug produces a state of unconsciousness during which Delilah severely beats a sorority sister. Delilah can probably claim involuntary intoxication as a defense in this situation. Although Delilah voluntarily drank the alcohol, she became intoxicated from the date rape drug that she ingested unknowingly. Delilah could be acquitted or could have a charge of aggravated battery reduced, depending on the jurisdiction.

Figure 6.7 Crack the Code

Ignorance and Mistake

Occasionally, a defendant’s mistake negates the criminal intent required for an offense. Mistakes can be a mistake of lawA defense that asserts the defendant incorrectly believes his or her conduct is legal, negating the requisite intent for the crime. or a mistake of factA defense that asserts the facts as the defendant incorrectly believes them to be negate the requisite intent for the crime.. Mistake of law and fact defenses can be statutory or common law, perfect or imperfect, depending on the jurisdiction.

Mistake of Fact

Mistake of fact is more likely to provide a defense than mistake of law. If the facts as the defendant believes them to be negate the requisite intent for the crime at issue, the defendant can assert mistake of fact as a defense.N.H. Rev. Stat. Ann. § 626:3I (a), accessed December 9, 2010, http://www.gencourt.state.nh.us/rsa/html/lxii/626/626-mrg.htm. Mistake of fact is generally not a defense to strict liability crimes because intent is not an element of a strict liability offense.People v. Olsen, 685 P.2d 52 (1984), accessed December 9, 2010, http://lawschool.courtroomview.com/acf_cases/8639-people-v-olsen.

Example of the Mistake of Fact Defense

Mickie sees Rachel, his neighbor, riding his bicycle in her driveway. Mickie walks quickly up to Rachel and demands that she get off the bike and return it to his garage. Frightened, Rachel hops off and runs to her house, leaving the bike behind. Mickie walks the bike over to his garage. Once Mickie reaches the garage, he sees that his bike, which is an exact replica of Rachel’s, is already inside. Mickie may be able to use mistake of fact as a defense to theft. As is discussed in Chapter 11 "Crimes against Property", the intent for theft is the intent to take the property of another person. Mickie believed Rachel’s bike was his. Thus Mickie’s mistake of fact negates the intent required for this offense.

Example of a Case That Is Inappropriate for the Mistake of Fact Defense

Tina is pulled over for speeding. Tina claims her speedometer is broken, so she was mistaken as to her speed. Tina probably cannot assert mistake of fact as a defense in this case. Speeding is generally a strict liability offense. Thus Tina’s mistaken belief as to the facts is not relevant because there is no intent required for this crime.

Figure 6.8 Comparison of Infancy, Intoxication, and Mistake

Key Takeaways

• Infancy is a defense to an adult criminal prosecution if the defendant is too young to form the requisite criminal intent for the offense.
• The purpose of an adult criminal prosecution is punishment; the purpose of a juvenile adjudication is rehabilitation of the minor before he or she becomes an adult.
• Four criteria that could support a juvenile court waiver of jurisdiction are the nature of the offense, the sophistication it requires, the defendant’s criminal history, and the threat the defendant poses to public safety.
• Voluntary intoxication may provide a defense if the intoxication prevents the defendant from forming the requisite criminal intent for the offense.
• Involuntary intoxication is intoxication achieved unknowingly or pursuant to force, duress, or fraud.
• Voluntary intoxication is frowned on as a defense and in many states does not provide a defense to certain crimes, such as reckless intent crimes. Involuntary intoxication is more likely to serve as a defense any time the defendant is incapable of forming the requisite criminal intent for the offense.
• Mistake of law may provide a defense if the defendant believes his or her conduct is legal because of reliance on a statute or judicial opinion that is later overturned.
• Mistake of law is not a defense when the defendant believes his or her conduct is legal because of reliance on the incorrect advice of an attorney.
• If the facts as the defendant believes them to be prevent the defendant from forming the requisite intent for the crime, mistake of fact could be a valid defense.
• Mistake of fact is not a defense to strict liability crimes because intent is not an element.

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Burt, a sixteen-year-old, consumes alcohol for the first time at a party. Unaware of alcohol’s effect, Burt drinks too much, attempts to walk home, and is cited for being drunk in public. In Burt’s state, the juvenile court has concurrent jurisdiction over minors ages seventeen and under, with a waiver to adult court available at the judge’s discretion. Burt has not broken any laws before. Is it likely that the judge will waive juvenile court jurisdiction in this case and allow the adult criminal prosecution of Burt? Why or why not?
2. Read People v. Register, 60 N.Y.2d 270 (1983). In Register, the defendant shot and killed an individual in a bar after drinking heavily for many hours. The defendant thereafter sought a jury instruction on the intoxication defense to a charge of depraved mind murder. The trial court refused, and the defendant was convicted. Did the Court of Appeals of the State of New York uphold the conviction? The case is available at this link: http://scholar.google.com/scholar_case?case=9019321014077082981&hl=en&as_sdt=2&as_vis=1&oi=.
3. Read Garnett v. State, 632 A.2d 797 (1993). In Garnett, the defendant, an intellectually disabled twenty-year-old, had sexual intercourse with a thirteen-year-old girl whom he believed to be sixteen, and was prosecuted for statutory rape. Did the Court of Appeals of Maryland reverse the trial court and allow the defendant to assert mistake of fact (the victim’s age) as a defense? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=9331824442522694687&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

Subjective Entrapment

It is entrapment pursuant to the subjective entrapment defense when law enforcement pressures the defendant to commit the crime against his or her will. The subjective entrapment test focuses on the defendant’s individual characteristics more than on law enforcement’s behavior. If the facts indicate that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant will not prevail on the defense.

The defendant’s criminal record is admissible if relevant to prove the defendant’s criminal nature and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent for the offense originated with law enforcement, not the defendant, the defendant can assert subjective entrapment as a defense.

Objective Entrapment

The objective entrapment defense focuses on the behavior of law enforcement, rather than the individual defendant. If law enforcement uses tactics that would induce a reasonable, law-abiding person to commit the crime, the defendant can successfully assert the entrapment defense in an objective entrapment jurisdiction. The objective entrapment defense focuses on a reasonable person, not the actual defendant, so the defendant’s predisposition to commit the crime is not relevant. Thus in states that recognize the objective entrapment defense, the defendant’s criminal record is not admissible to disprove the defense.

Example of Objective Entrapment

Winifred has a criminal record for prostitution. A law enforcement decoy offers Winifred $10,000 to engage in sexual intercourse. Winifred promptly accepts. If Winifred’s jurisdiction recognizes the objective entrapment defense, Winifred may be able to successfully claim entrapment as a defense to prostitution. A reasonable, law-abiding person could be tempted into committing prostitution for a substantial sum of money like $10,000. The objective entrapment defense focuses on law enforcement tactics, rather than the predisposition of the defendant, so Winifred’s criminal record is irrelevant and is not admissible as evidence. Thus it appears that law enforcement used an excessive inducement, and entrapment may excuse Winifred’s conduct in this case.

Figure 6.9 Comparison of Subjective and Objective Entrapment

Figure 6.10 Diagram of Defenses, Part 2

Key Takeaway

• The subjective entrapment defense focuses on the individual defendant, and provides a defense if law enforcement pressures the defendant to commit the crime against his or her will. If the defendant is predisposed to commit the crime without this pressure, the defendant will not be successful with the defense. Pursuant to the subjective entrapment defense, the defendant’s criminal record is admissible to prove the defendant’s predisposition. The objective entrapment defense focuses on law enforcement behavior, and provides a defense if the tactics law enforcement uses would convince a reasonable, law-abiding person to commit the crime. Under the objective entrapment defense, the defendant’s criminal record is irrelevant and inadmissible.

Exercises

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Allen has a criminal record for burglary. Roger, a law enforcement decoy, approaches Allen and asks if he would like to purchase methamphetamine. Allen responds that he would and is arrested. This interaction takes place in a jurisdiction that recognizes the subjective entrapment defense. If Allen claims entrapment, will Allen’s criminal record be admissible to prove his predisposition to commit the crime at issue? Why or why not?
2. Read Sosa v. Jones, 389 F.3d 644 (2004). In Jones, the US District Court for the Eastern District of Michigan denied the defendant’s petition for a writ of habeas corpus after he was sentenced to life in prison for conspiracy to sell and sale of cocaine. The defendant claimed he had been deprived of due process and was subjected to sentencing entrapment when federal agents delayed a sting operation to increase the amount of cocaine sold with the intent of increasing the defendant’s sentencing to life in prison without the possibility of parole. Did the US Court of Appeals for the Sixth Circuit reverse the district court and grant the defendant’s petition? The case is available at this link: http://openjurist.org/389/f3d/644/sosa-v-jones.
3. Read Farley v. State, 848 So.2d 393 (2003). In Farley, the government contacted the defendant, who had no criminal record, in a reverse sting operation with a mass e-mail soliciting individuals to purchase hard-core pornography. The defendant responded to the e-mail and was thereafter sent a questionnaire asking for his preferences. The defendant responded to the questionnaire, and an e-mail exchange ensued. In every communication by the government, protection from governmental interference was promised. Eventually, the defendant purchased child pornography and was arrested and prosecuted for this offense. The defendant moved to dismiss based on subjective and objective entrapment and the motion to dismiss was denied. The defendant was thereafter convicted. Did the Court of Appeal of Florida uphold the defendant’s conviction? The case is available at this link: http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjgjg&searchTerm= eiYL.TYda.aadj.ecCQ&searchFlag=y&l1loc=FCLOW.