Criminal Law Class Notes 11/10/03


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 8:30 AM.  That’s optional.  We’ll hear about the other journals later.  The JCL is brand-spankin’ new.  It’s also different from the other journals in certain respects.  Dressler is going to tell us some stuff in advance and try to sell us on JCL rather than the other journals.  If you have any interest in working on a journal, come on out at 8:30 AM and whoo-hoo!


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 California.  After California, a bunch of states followed.  Then California changed its mind and abolished the diminished capacity defense, and other states have followed.  There are now very few states that recognize diminished capacity.  The Model Penal Code, however, does recognize this concept.  Manslaughter, under the Model Penal Code, covers extreme mental disturbance, not just extreme emotional disturbance.  Any state that recognizes “EMED” implicitly recognizes the diminished capacity doctrine.  But most states have abolished the “partial responsibility” version of the diminished capacity doctrine.


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 Detroit juries that were harsh in their judgment of inner-city Detroit defendants.  Maybe a jury in a poor community does have the moral standing to convict someone else in that community.


Cultural defenses


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.


State v. Kargar


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.


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[1] “Fair is the fudge word.”