Criminal Law

1. Criminal Law Chapter 6 Defenses to Criminal Liability: Excuse Joel Samaha, 9th Ed.

2. Insanity Insanity is a legal concept, not a medical term. or, What psychiatry calls “mental illness” may not be legal insanity. Insanity excuses criminal liability only when it seriously damages the person’s reason and/or will to act or to understand. Few defendants plead the insanity defense, and those that do hardly ever succeed.

3. Tests of Insanity • Right-wrong test (M/Naghtenrule) • Volitional capacity (irresistible impulse) • Substantial capacity test (the MPC test) • Product test (Durham rule)

4. M’Naghten’sCase (1843)* Two pronged right-wrong test: 1) The defendant had a mental disease at the time of the crime, and 2) The disease or defect caused the defendant not to know either a) The nature and the quality of his or her actions, or b) That what he or she was doing was wrong. * The rule in 28 jurisdictions.

5. M’Naghten’s Case (cont’d)* Explain the following key word(s) and phrases from the M’Naghten two-pronged right wrong test. Mental disease Mental defect Know Nature and quality of the act Wrong * Pennsylvania:M'Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.

6. The Irresistible Impulse Test orVolitional Incapacity Some jurisdictions supplement the right-wrong test with a test which takes volition or willpower into account – irresistible impulse. In addition to the two pronged right-wrong test, if the defendant did know right from wrong, the law will still excuse the defendant if two conditions occur: a) If the mental disease caused the defendant to so far lose the power to chose between right and wrong and to avoid committing the alleged act because the disease destroyed his free will, and b) If the mental disease was the sole cause of the act.

7. The Irresistible Impulse Test(cont’d) Why did the federal government (and several states) abolish the irresistible impulse defense in 1984 ?

8. The Substantial Capacity Test* 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 – ALI, 1985). Explain the use of appreciate instead of know. Explain the phrase, conform his conduct. (“mental disease or defect” excludes psychopathic personalities, habitual criminals, and antisocial personalities from the defense). * Fourteen jurisdictions use this rule.

9. Question What was the criticism of the right-wrong test in the California Supreme Court case People v. Drew ? 583 P.2d 1318 (Cal.1978)

10. The Product-of-Mental-Illness Test(the Durham Rule) • Acts that are the “products” of mental disease or defect excuse criminal liability. • Only the U.S. Circuit Court for the District of Columbia, and the states of Maine and New Hampshire ever adopted the ‘product test.’ The U.S Congress did away with the ‘product’ for federal jurisdiction after John Hinckley’s trial for attempting to assassinate President Reagan. New Hampshire is the only state still using the product test, which was adopted in 1871.

11. Burden of Proof • Federal law: defendants have to prove they were insane by clear and convincing evidence. • Most states: Insanity is an affirmative defense – sanity and responsibility is presumed. Defense has to offer some evidence of insanity; then the burden shifts to the government to prove sanity. • States differ on burden of proof standards: proof beyond a reasonable doubt, clear and convincing evidence, and some require a preponderance of the evidence. • The trend is to shift the burden to the defendant and to make it heavier.

12. Diminished Capacity What is the difference between diminished capacity and diminished responsibility?

13. Age According to common law, what are the three categories of deciding young people’s capacity to commit crimes? Why are more juveniles at younger ages being tried as adults?

14. Duress There are four elements for duress, however, these elements vary from state to state. • Threats amounting to duress, e.g., death threats, ‘serious bodily injury,’ or no specific threat. • Immediacy of the threats, e.g., instant, imminent, or immediate. • Crimes the defense applies to, i.e., the majority of states say it is not a defense to murder, in other states, it is a defense to all crimes. • Degree of belief regarding the threat, i.e., most states require that there a reasonable belief the threat is real, others require that the threat is actually real.

15. Duress It’s hard to blame someone who was forced to commit a crime, but should we excuse people who harm innocent people to save themselves?

16. Intoxication How do the principles of accountability and culpability affect the defense of intoxication? Involuntary intoxication is an excuse to criminal liability in all states. Alcohol is not the only intoxicant covered by the defense of intoxication. In most states, it includes all “substances” that disturb mental and physical capacities.

17. Entrapment Is entrapment an affirmative defense? Explain. What is the subjective test of entrapment? What is the objective test of entrapment? What were the facts and findings in the U.S. Supreme Court’s decision - Sherman vs. U.S. (1958)? What are the facts, legal question, and opinion of the following two cases? Oliver v. State (1985) DePasquale v. State (1988)

18. Syndromes Define syndrome as it relates to mental states. Should all syndromes be excuses to criminal liability? Do you agree or disagree with the opinion of the Tennessee Court of Criminal Appeals’ decision in State v. Phipps (1994)?