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52 views4 pagesDefenses
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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/ 4
exonerating evidence was discovered, it is important
to.ensure that attorneys-who defend those facing our
severest sanctions have the ability to be competent
advocates. :
4 Kawgerty TATUM
References arid Further Reading
‘American Bar Association, Guidelines forthe Appointment and
Performance of Defense, Counsel in Death Penalty Cases,
February 2003,
DEFENSES TO CRIMINALLIABILITY: JUSTIFICATIONS AND EXCUSES
Carlson, RIL, Criminal Justice Progedure,.6th eq, Anderson
Co, 1999,
Ferdico, J. N., Criminal Procedure for the Criminal Justice
‘Professional, th e4., Wadsworth Publishing Co., 2002.
Kamisaz,-L. and Isratl, Modem Criminal Procedure, West
Publishing, 2000,
US. Department of Justice, Twp of Three Felony Defendants
‘Represented by Publicly Financed Counsel, Bureau of Justice
Statistics, November 2000,
See, also Counsel, Right to; Criminal Courts:
Personnel; Due Process
Defenses to: Criminal Liability:
Justifications and Excuses
Introduction
‘A defense is a response-made by the defendant to a
charge in a criminal trial. It is raised after the prose-
ccution has established its.case, and permits the defen-
diht to avoid liability even when the government has.
niet its burden of proof on the elements of the offense.
There bre two gexeral' defenses of justification and
éxcuse—these are thé focus of this Entry, Jstfication
and excuse defenses ré referred to as affirmative
defenses, because the defendant must’ ‘them in
order for the jury to consider them. This is referred to
as the burden of production. Generally, the defendant
‘must alsp-meet the.burden of persuasion on an alfir-
mative defense, by a “preponderance of the.evidence,”
although some states impose a greater burden of per-
suasion on the deferidant for certain defenses such as
the insanity defense, while other states require the
prosecution to disprove an affirmative defense beyond
a reasonable doubt (Bressler, 1995).
Justification Defenses
‘A justification defense is raised when the defendant
admits responsibility for the act but claims that under
the circumstahces the act was not criminal, that what
was done was lawful. Justified behavior prechides pun-
ishment because the conduct lacks blameworthiness,
Examples of common justification defehsés include
self-defense, defense of others or property, consént,
and the execution of public duties.
Self-defense
Self'defenge may be successfully claimed if the defen-
daihts can demonstrate that they used force to repel an
imminent, unprovoked attack’that would have caused
them serious injury (Fletcher, 1978). In such a situation
the defendants may only use as much force as they
honestly and reasonably believe is necessary to repel
the attack—the defendants cannot use excessive force.
Additionally, force may only be used against unpro-
voked'attacks. This meats the defendants cannot pro-
voke the aftack, or if they did,"they must have with-
drawn completely from the fight before asserting:
right to self-defense. Force may be used only whet
the victims hofestly and reasonably believe they are
abbut to be killed or seriously injured. Threats that
cannot be takeh seriously do not justify the use of
force. Force may be used only when an attack is either
in progress or “immifent”—meaning it will occur
immediately. It cannot be used to prevent a future
attack. One cannot claim self-defense against one who
is justfied'in uSing force, as during an arrest (Hemmens
and Levin, 2000). Self-defense may be asserted only
against an aggressor using unlawful force. Self-defense
applies to both deadly and nondeadly uses of force.
One may use deadly force only if faced with it. Less
than‘ deadly attacks authorize resort to less than deadly
responses.
‘There are a number of limitations and exceptions
to the general rules of self-defense. The retreat doctrine
requires that a person must retreat rather than use
deadly force if'safe retreat is possible, This doctrine
places a premium on human life and discourages the
317 DEFENSES TO CRIMINAL LIABILITY: JUSTIFICATIONS AND EXCUSES
use of deadly force unless absolutely necessary, and is
endorsed by the majority of states. The true man doc
trine, conversely, states that the victim of an attack
need not retreat, and may use whatever force is nec-
essary (0 repel an attack, even if a.safe retreat was
possible. It is based on the idea that the criminal law
should not force a victim to take a cowardly/tumitiating
position. Few states follow this doctrine today. The
castle doctrine states that a person attacked in the home
does not have to retreat, even if retreat is possible. This
exception to the retreat doctrine is based on the idea
that a person’s home is their castle, and that one should
never be forced by the criminal law to abandon it
(Brown, 1991).
Self-defense may also apply to defense of others and,
in some circumstances, to the defense of property. His-
torically, defense of others was allowed only for family
members. Most states have expanded this restriction to
include other special relationships, such as lovers and
friends, while other states have’ abandoned the special
relationship requirement altogether. The “other” must
have the right o defend himself forthe defender to claim
the defense, Thus if A provokes an attack by B, C could
not use force against B and claim defense of B. Most
states restrict the use of deadly force to defense of the
person or the home, and allow only nondeadly force for
defense of property. In contrast, some states, such as
Texas, allow deadly force to protect land or certain types
of property, such as natural gas.
Consent
Consent is a defense to some crimes. Most jurisdic-
tions provide that persons may consent to suffer what
‘would otherwise be considered a legal harm. The acts
a person can consent to suffer are quite lifgited, how-
ever, and it must be demonstrated that the consent was
voluntary, knowing and intelligent. There can be no
duress, trickery, or incompetence involved in obtainihg.
consent, Additionally, one cannot consent after the fact,
to injuries already received (Dressler, 1993).
‘Most jurisdictions allow consent only for minor
injuries, or for activities society widely recognizes
have a high potential for injury. An example of consent
is professional athletes who choose to engage in activ-
ity where injury similar to an assault may occu, as
when a boxer punches another boxer. One cannot con-
sent to serious injury, as doing so is assumed irrational
Thus, one cannot claim consent as a defense in mercy
killing or euthanasia cases.
Execution of Publie Duties
‘The common law allowed a public officjal to use rea-
sonable force in the execution of his official duties.
378
This defense recognizes the value society places on
obeying the law, and in permitting those charged with
official duties the necessary authority to carry out those
duties. Today an agent of the state, such as a police
officer or soldier, is permitted to use reasonable force
in the lawful execution of his or her duties. This
defense allows the use of deadly force under the proper
circumstances, and also allows police to engage in
activities that are otherwise criminal if they are doing
so as part of’ their law enforcement efforts, such as
posing as a drug dealer.
In the early development of English common law,
sheriffs and posses could use deadly force to appre-
hend any fleeing felon, At this time, felonies were
capital offenses, and it was particularly ‘difficult to
apprehend fieeing criminals. This was known as the
fleeing felon rule. The U.S. Supreme Court, in Tennes-
see v. Garner (471 US. 1, 1985), held that police use
of deadly force to apprehend fleeing criminal suspects
‘was limited. by the Fourth Amendment that requires
that all seizures be conducted in a reasonable manner.
‘The tuling limited the use of deadly force against
fleeing felons who pose a threat to public safety (€.g.,
armed, violent offenders).
Excuse Defenses
‘The second type of affirmative defense is the excuse
defense. With an excuse defense the defendant admits
what he did was wrong but argues that under he cir-
‘cumstances he is not responsible for the improper con-
duct. Examples of excuse defenses include duress,
intoxication, mistake, age, and insanity,
Duress
Duress may be raised as a defense in a limited number
of situations.-An example of duress is‘as follows: A is
forced to rob store by B, wht holds «gun to A's head
and threatens to Kill A unless A does as instructed. In
this instance A committed a serious ¢rime, the robbery;
but.did-so only to‘ avoid a-more serious crime, being.
murdered by B. Duress is allowed as a defense under
the rationale that those forced to commit a crime in
such circumstances do not act voluntarily, and the
criminal law, as a practical matter, cannot force people
to act irrationally against their own self-interest (Kadishy
1987).
At,commop law, the defense of duress.was permit-
ted only when the defendant was threatened with both
imminent.and. setious harm,,and the act committed
under dress resulted in less harm than the threatened
harm. Most states now allow the defense fpr all crimes,
except murder. (which is never excused), while some
still limit the Yefense to minor crimes. Some states allow the, duress defense only under fear of “instant
bag,” but most stil follow the common Law imminent
harm’ rule, Threats to harm a third person or property
do not constitute duress, ; 1
Intoxication.
There are two forms of intoxication, voluntary and
involuntary. Intoxication here refers to the effects of
either alcohol or drygs. The effect of intoxicatipn.on
criminal liability differs according tg whether. it was
voluntary or involuntary (Ward, 1974). Voluntary
intoxitation never provides a complete defense, but it
‘maybe used to mitigate the punishment. Inyolyntary
intoxication may proyide a defense if it can be,shown
that, the actors were unaware that they were, being
rugged. In such cases the actors are excpged because
they are not responsible for becoming intoxicated; con-
sequently it would be unfair to hold them liable for
the resulting uncontrollable and unintended action
Interestingly, the Suptemd Court has held that due
process does not require that states allow the defense
of intoxication (Montana v. Fgelhioff, 518 US. 37,
1996) Obviously, intoxication is also never recognized
as a Wefeaise in situations where intoxication is an
clement of the crime, such as drunk driving or public
intoxication.
Mistake
There are two types of mistake defensts—mistake of
law and niistake of fact. The cliché “ignorance of the
law is no excuse” is actually ‘8 misstatement. Mistake
of law has always excused some (but very little) crim-
inal responsiblity. Ignorance is an excuse if the defen-
dant undertakes reasonable efforts to learn the law, but
fs still unaware that he, has violated some obscure,
‘unusual law (Fletcher, 1978). The constitutional pro-
hibition on vague laws means persons must be pro-
vided with reasonable notice of what constitutes crim-
inal conduct before they are punished for such conduct.
Mistake of fact excuses criminal liability when it
negates a material element of the crime. The mistake
must be both reasonable and honest. An example
would be if an airline traveler took another passenger's
Iyggage by-mistake, thinking it was theirs. Although
they havetaken the property of another, as in larceny,
they lack the requisite intent to deprive another oftheir
property
Age
Historically, youth has been treated as a defense to crim-
{nal Iiabtity on the ground that persons below a certain
age lack the requisite mental capability to form mens rea,
DEFENSES.TO CRIMINAL LIABILITY: JUSTIFICATIONS AND EXCUSES
or criminal intent. At common law there was an irrebut-
table-presumption that children under-the age,of seven
years were incompetent. Children between the ages of
seven and fourteen ‘were:presumed incapable, but this
presumption could be rebutted by the prosecution. Chil-
dren over-the age of fourteen were presumed to have
‘the:mental capacity to form mens rea, but the defense
could-rebut this presumption (Feld, 2000). Today the
vatious jurisdictions define the age of maturity differ-
cently, ranging from sixteen to, twenty-one.
‘Those classified as juveniles are processed through
the juvenile justice system rather: than the criminal
justice system. The juvenile court was established as
‘an alternate, more forgiving approach ‘to juvenile
offenders, and was based on the parens patriae doc-
tine, which hold that the state should act in the best
interests of a child. Today the parews patriae doctrine
of the juvenile court is slowly giving way to an
increased desire to treat juveniies similarly to adult
offenders; hence a number of states have removed
juvenile court jurisdiction for serious crimes or repeat
offenders, or have lowered the age at which a juvenile
can be transferred to adult criminal court (Fritsch and
Hemmens, 1996).
Insanity
Insanity is a legal term that describes mental illness.
It is not a medical term, Insanity excuses criminal
liability by impairing the mens rea of the defendant.
Tf a defendant is determined to be insane, then he is
not blameworthy or culpable (Mortis, 1982). There are
several different legal tests for insanity that have been
developed over time, usually in response to a partic
larly egregious crime. They focus on the reason and
willpower of the defendant. These tests include the
right-wrong test (also called the M'Naghten rule), the
irresistible impulse test, and the substantial capacity
test. Each of the tests of insanity is slightly different.
‘The M'Naghten test for insanity focuses on the
defendants intellectual capacity to know what they are
doing and to distinguish right from wrong. It is a two-
prong test: (I) the defendant must suffer from a disease
fo defect of the mind; and (2) this must cause the
defendant either to not know the nature and quality of
the criminal act or to not know right from wrong. This
definition prompts 4 number of questions. (1) What
constitutes a “disease of the mind”? Is it any mental
problem, or just a severe psychosis? (2) What does
“knowing” mean? Most courts have held that it means
intellectual awareness, which. nearly everyone has.
Other courts say it means being able to grasp an act's
true significance. (3) What is “wrong”? Does it refer
to what is defined as wrong by the law, or rather what
is considered immoral? DEFENSES TO CRIMINAL LIABILITY: JUSTIFICATIONS AND EXCUSES
The irresistible impulse test for insanity is an excuse
for criminal liability when defendants are unable to
control their conduct or compelled to commit a crime
because they suffer from a mental disease or impair-
‘ment. This test holds that the defendants may not be
responsible for controlling their conduct, even if they
know the conduct is wrong. This test is broader'than
the rightwrong test, but critics have argued that it
ignores the ability of the mentally ill'to engage in
reflection. There is great difficulty in distinguishing
between irresistible impulses and mere unresisted
impulses (Morse, 1985).
‘The substantial capacity test is defined as when
defendants lack substantial capacity to either eéntrol
their conduct or appreciate the wrongfulness of the
conduct. This test was developed by the American Law
Institute, which drafted the Modet Penal Code, and
was adopted widely by the states during the'1960s and
1970s. It is a modified version of the right-wrong and
irresistible impulse tests. Tis test states that defendant
is not responsible if he lacks “substantial capacity to
appreviate criininality of act or to conform his [sic]
conduct.” It requires that defendants lack substantial,
rather than total, capacity. The right-wrong and ime
sistible impulse tests are ambiguous on this point.
All of these tests have been criticized as either too
difficult or too easy for the defense to prove insanity
(Dressler, 1995). Courts and legislatures have limited
the use of the insanity defense’ of shifted the burden
of proof. This movement stems from a fear that insane
defendants will not be adequately punished, or-will be
released too soon. Ati exariple-is the 1984*Federal
Comprehensive Crime “Control "Act, passed shortly
after John Hinckley was found not guilty by reason of
insanity for attempting to assassinate President
Reagan. This legislation shifted the burden of proof
from requiring the prosecutor to prove sanity beyond
a reasonable doubt to requiring the" defense to prove
insanity by clear and convincing evidence (a tougher
standard than the preponderance of the‘evidence:stan-
dard usually applied to affirmative defenses). The
Model Penal Code rejects this approach, and requires
the state to prove sanity beyond a reasonable doubt.
Some states allow a verdict of “guilty but mentally il,”
but require the state to treat the defendants in a hospital
instead of putting them in prison. Some states havé
abolished the insanity defense altogether.
Conclusion
Affirmative*defenses have a long history in the crimi-
nal law. Most were develdped in English common law,
and have been codified subsequently in criminal codes.
As with any legal doctrine, thest defenses aft ‘subject
to modification over time. As society changes, s6 does.
380
the criminal law. An example is the insanity defense,
First adopted by courts as a means of providing clearly
incompetent defendants with the opportunity to avoid
criminal liability, the insanity defertse has been altered
so that it is harder to claim.
Although they differ in their elements, justification
and excuse defenses provide an important limit to the
application of the criminal law. ‘These defenses repre-
sent a recognition that not every person who does
something that appears to be a crime should be pun-
ished for their actions. Whereas the basic elements of
an offense (act, inteht, and harm) may be present, the
law recognizes that some persons still should not be
subject to criminal sanction for their conduct. This is
because what they