Criminal
Law Class Notes
Today’s
material will end the chapter on defenses.
Next class, there will be an info session about the Ohio State Journal
of Criminal Law at
A
hypothetical
I
am to imagine that I am a defense attorney.
Say we’re in a Model Penal Code world.
What can we do for this defendant?
The
defendant was charged with burglary, and for current purpose, let’s assume that
burglary is defined as in common law.
The only evidence was from the victim and three psychiatric
reports. The victim said that he left
his home, and when he came back three days later, the victim found the defendant
in the victim’s apartment. The apartment
was in shambles. The defendant was
wearing the victim’s clothes and cooking the victim’s food. The psychiatric reports, submitted to the court,
which were not questioned by the prosecution, explained that the defendant had
a long history of psychotic illness, including many committals for psychiatric
treatment. The defendant started to
believe that he “owned property” and he was “directed” to the victim’s
apartment. He believed that the victim’s
apartment was really his. When the
police arrived, the defendant was shocked and embarrassed and only then
understood that he did not own the apartment.
The prosecution didn’t dispute those psychiatric reports.
What
is my argument to try to get my client off?
What if the client doesn’t want to go back to the asylum? That is, what if insanity is off the table?
We
might want to argue a mistake of fact, although it might be better to argue
that the defendant lacked the required state of mind. We could use Model Penal Code § 4.02, and say
that the defendant lacked the mens rea for the crime. Nobody will believe that the defendant was
mistaken about not owning the stuff unless you can introduce that psychiatric
testimony.
Excuse
defenses – a laundry list
·
Duress
·
Intoxication (you don’t need to know it for the test…it’s
very limited)
·
Insanity
·
Infancy
·
Diminished capacity
There
are two models of diminished capacity: (1) the mens rea model and (2) the partial
responsibility model.
What
we’re talking about in the hypothetical is the mens rea model. We’re not going to ask that the defendant’s
conduct be excused. Instead, we’re
saying that the prosecutor has failed to prove an element of the crime, and
that therefore the prosecutor has failed to prove the case. The prosecutor has the burden of proving all
the elements of the case beyond a reasonable doubt. The prosecutor must therefore prove that the defendant
knew he was breaking into someone’s else and knew he was taking
someone else’s property.
On
the other hand, if we used an insanity claim or some other excuse defense, the
burden of proof would be placed on the defendant instead. In this hypothetical, we’re not really
talking about diminished capacity, but rather we’re talking about whether the defendant
did or did not have the mens rea required for the crime. The court found that he did not have the
necessary mens rea. This wasn’t an
excuse.
Model
Penal Code § 4.02 reminds us that medical or psychiatric evidence can be used
not only to prove insanity, but to proof the lack of a certain mens rea
necessary for to prove a crime.
On
the other hand, when all of the elements of the crime have been proven,
some courts will reduce the offense from murder to manslaughter on the grounds
that a person should be found to be partially responsible for the
homicide. It’s a case of partial
diminished capacity rather than total loss of capacity. Courts recognize that there are some people
who are not insane, but also are not fully responsible for their
actions.
The
leading state in the country to recognize the latter version of diminished capacity
was
New
excuses
There
has been far more attention paid to excuse defenses than to justification defenses. There is far more “push” on the part of
lawyers to come up with more excuses than there are to come up with justifications. There have also been more arguments to
abolish or narrow excuses than to abolish or narrow justifications.
Let’s
ignore what the law is, and instead talk about what the law should be.
Let’s
say we can do anything we want! Let’s
say we can make any defense we want to make!
Rotten social background defense
This
is also known as the “social environmental” defense.
Bazelon,
in Alexander, was the first judge to argue for the recognition of an RSB
defense. That led to a lot of scholarly
discussion, including Richard Delgado’s argument.
What
about RSB as a partial excuse? If
you steal something though you can afford to buy it, maybe the social harm is
greater than if you couldn’t afford to buy it.
How
would we explain this excuse in terms of the excuse theories we have previously
discussed? Delgado would say RSB is a causation
excuse. Delgado would say that being
poor caused people to commit a crime.
The causation theory is the broadest of all the excuse theories. In fact, causation theory can excuse all
criminal conduct. Everything that you’re
responsible for is caused by something else, so we would have results that don’t
seem to conform to our notions of fairness.
On
the other hand, Dressler would argue that the “free choice” theory of excuse is
the narrowest of the three non-utilitarian theories. “Did the person have both the capacity and
fair opportunity[1] (to
apply the three prongs of the standard)?”
If not, then the person may be excused.
With
causation, you keep looking backwards more and more. The “free choice” theory narrows the focus to
the particular moment when the offense was done.
What
are the problems with the rotten social background defense? It is suggested that the defense is “infinitely
expandable”. But couldn’t the jury see
through RSB defenses with no merit?
What
if someone comes from really awful conditions? Why wouldn’t we at least partially excuse
their conduct?
There’s
one view of retributivism that says that people have a “right to be punished”. If you take away that right, you “dehumanize”
people.
If
you take a utilitarian view, you’re going to get a whole different answer. How can you defeat RSB on its own terms, that
is, on a retributivist basis?
If
we allow an excuse for the defendant based on RSB, what will the effect be on
society? We must say that the dangerous
person goes back on the street. It also
creates the incentive for other similarly situated to argue that they are
similarly situated and make a claim for a rotten social background defense. In the long run, if we’re utilitarian, we
actually want to reduce the rotten social background that causes the crime
rather than merely eliminate the crime.
Then you would get a utilitarian argument for the defense: if we excuse
people with rotten social backgrounds, then we may give society an incentive to
eliminate the conditions that lead to such backgrounds.
Bazelon
would argue that even though the defendant is to blame, we’re responsible for
letting the defendant have a rotten social background. This is neither a justification nor an
excuse. It says something quite
different about the relationship between the government and its citizens.
Dressler
gives the example of inner-city
This
is the most litigated “new excuse” today.
In the casebook, there are quotation marks around this defense. That’s because the question we’re really
confronting is to what extent a person’s culture, such that it’s different from
American culture, should be relevant in determining a person’s culpability or
fault for a crime. This can come up in
the context of mistake of fact or mistake of law.
Assume
that Kargar did what he did and that he accurately characterized his own
culture. Should he be convicted of this
crime? What is the importance of legislative
intent?
What
about the case of the man from the Hmong tribe believing that he was
participating in a Laotian “marriage-by-capture” ritual? How does this relate to Kargar?
If the defendant had been convicted of rape, he not only would be
subject to punishment, but he would also automatically be deported as soon as
his punishment was over. Deportation normally
automatically follows conviction of a felony, though not a misdemeanor.