DEFENSES TO CRIME
"Guilt sucks" (movie Down & Out in Beverly Hills)

    Both statutory law and the common law provide many defenses to crime. Other than having an alibi (which is not technically a defense but a denial), there are two main types of defenses: (1) Justifications and (2) Excuses. These terms are not easily defined, and the distinction is less than perfect. Justifications refer to situations in which the defendant doesn't deny they did it but that they did it for all the right reasons, an appeal to higher loyalty or ideals (as in self-defense) or more important reasons (as in necessity), for instance. Excuses refer to situations in which the defendant also doesn't deny they did it but that they are not responsible for it (as in insanity or diminished capacity defenses), typically on grounds of lacking volition over their free will.  Sometimes, it's said that Justifications involve denying mens rea and Excuses involve denying actus reus, but the mind-body connection is complicated in this regard, and this saying can confuse you. Take sleepwalking, for instance, which might be treated as the inability to form mental intent although it's the body (which is asleep). The law also tends to think of "mental" disorder as brain disorder, to avoid metaphysical debates over whether or not it's possible for something invisible like a "mind" to get sick.

    Although in this lecture, we will simply divide the defenses into Justifications and Excuses, conceptually, one can formulate at least five different classes of defenses:

JUSTIFICATIONS

SELF-DEFENSE
    Self-defense, or self-help, has always been a recognized justification, and it has many, many variations. It does not apply to preemptive strikes or paybacks, but it does cover a wide range of behaviors that make the crime seem justified, in fact, so justified that self-defense is called a perfect defense (the defendant "walks"). Other justifications and excuses may only be imperfect defenses which are treated as mitigating circumstances resulting in a lesser punishment.  Many of the various domestic violence defenses are examples of the defense of self-defense.

    The law of self-defense revolves around the notion of reasonableness. The person claiming it must have had a reasonable belief in imminent danger and used a reasonable degree of force. Some states have specifically mentioned self-defense can be used when the danger is a specific felony, such as rape, sodomy, kidnapping, and robbery.  Reasonable force means that if someone slaps your face and you shoot them, that's unreasonable because you escalated force a bit too far when just returning a slap in the face might have been more reasonable. 

    Imminent is a word meaning in progress or about to happen right now. You can't use self-defense for continuing and ongoing danger, although a few states have allowed this. Most states use an objective test to determine the sense of being imminent, and their statutes either spell out the grounds for a reasonable belief or they use a reasonable man standard. Other states use a subjective test (honest belief).

    Most states also adhere to the retreat doctrine. This is the rule that defenders must have taken all means to avoid or escape before attacking in self-defense, although in some jurisdictions, the law views this as cowardly, and a standard called the true man doctrine is applied. Most states, however, adhere to the castle doctrine, the idea that when attacked in one's home, you should hold your ground and not be required to retreat. This is called defense of property.

    Self-defense can include protecting family, friends, and lovers; i.e., in defense of others. Anti-abortion activists often claim this, but it's more typically associated with things like the Mother Lion syndrome or some other so-called "emerging" defense to crime.

PUBLIC DUTY
    Another type of justification is a public duty defense. It's the basis for a lot of military justice, diplomatic immunity, and covers a number of things that police do, such as shooting looters after a disaster. The idea here is that there's a higher loyalty, and it's located in upholding the law.

    A dilemma in law arises with the notion of resisting unlawful arrest. Why can't citizens, for example, appeal to a higher duty when they think their arrest is unlawful?

NECESSITY
    The principle of necessity is best explained by the prototypical case of cannibalism in the lifeboat. The famous case of The Queen v. Dudley and Stephans involved two men who ate a 17 year old weakly youth, after saying a prayer for him, because they were starving to death out in a lifeboat.  This is an example of the choice-of-evils defense the essence of which is in choosing the lesser of two evils or avoiding a greater evil (in the case of cannibalism, choosing to eat the weekly young man instead of letting the whole group starve). The MPC extends the necessity principle to include the following:

    Another type of necessity defense is the claim to economic necessity. This would be stealing to avoid hunger, for example, but the classical dilemma is whether or not it would be right for a father to steal a loaf of bread to feed his starving children. Conflicting opinions can be found in the law and it's approach to this problem. The extremely powerful and influential Commentaries (by Sir William Blackstone) for example state flatly that economic necessity is no defense. The Anglo-American approach has therefore been that the state's power of pardon is enough to deal with poor people who commit crime out of need, so it would depend on case law and judicial opinion in a specific jurisdiction if this kind of defense would be successful.

CONSENT
    Courts tend to recognize the defense of consent when people exercise their autonomy and choose to die or inflict injuries on themselves. The defense cannot be used if someone has solicited or authorized someone else to inflict injuries on them. This defense can be used in cases where two people are engaged in a consensual attack with one another (e.g., "fighting"), cases of injuries in sporting events, and cases in which emergency medical care had to be given which resulting in more harm than good. Condonation (forgiveness) by the victim and negligence by the victim are not generally considered as defenses.

EXCUSES

DURESS
    The main type of excuse is the defense of duress. The principle is that when people are forced to do something wrong, it ought not to count against them. There is widespread disagreement, however, over how duress is defined and what kinds of crimes can be excused by duress. States differ. Some permit only having a gun pointed to your head; others permit threats of bodily harm ("I'll hurt you if you don't do that"); and still others are fairly lenient is permitting such things as "If you don't do that, I'll tell other people something nasty about you". Whatever the threat, it must be immediate, not some ongoing situation of extortion or blackmail. And, whatever the threat, the crime must be minor and not serious. Murder, for example, can never be excused by duress.

    Some modern forms of duress statutes have included the specific defense of brainwashing, a type of duress involving breaking down somebody's will. If a person is confined, pressured for months, given hypnotic drugs, narcotics, or other substances, the law looks upon and crime committed under these circumstances as lacking the element of actus reus.

INTOXICATION
    There are different ways to get intoxicated, and the law recognizes two ways: voluntary and involuntary. Voluntary intoxication goes to the element of mens rea (ability to form the capacity to understand purpose or intent), and is logically a justification. Involuntary intoxication, on the other hand, is an excuse because the person's body did not know it was under the influence. There's also an assumption of duress with involuntary intoxication. It's not that one would have had to been held down and had the liquor poured down them by force (it's almost like that if say someone insists you drink with them), but it's more like a friend tells you to try out these sugar pills and they turn out to be LSD so you think someone looks like a rabid dog and you shoot them. Theoretically, the principle of intoxication gets at the concept of volition. Sometimes, it's argued that watching television too long is a form of intoxication.

MISTAKE
    Mistake or ignorance of fact has always excused criminal responsibility under some circumstances, and in all circumstances, it's always acceptable that anyone holding a genuine and sincere belief in something which (if true) would negate their criminal liability should be something that does. The principle of mistake of fact excuses when it negates a material element in the crime. For example, taking the wrong umbrella when leaving the room because it resembled your own umbrella negates the element of mens rea (forming criminal intent to steal). The principle of mistake of law (ignorance of the law) excuses criminal behavior if a person has made a reasonable effort to learn the law. In practice, it's difficult to distinguish between mistakes of fact and law, and the law must be careful to not open the door to allowing everybody to claim ignorance.

INFANCY
    This is one of the three I's (Intoxication, Infancy, and Insanity) that make up the capacity defenses to crime. The principle is that age always affects criminal liability. At common law, under age 7, there's an irrebuttable presumption that someone is incapable of committing a crime. Under age 14, there's a rebuttable presumption that someone is incapable of committing a crime. Changes in juvenile law and the increasing practice of waivers to adult court have substantially changed this common law, however, as society seems increasingly ready to recognize that young people can, and do, commit serious crimes.

ENTRAPMENT
    Entrapment is a perfect defense (the defendant "walks"), but it's often just a way to shift the burden of persuasion to the prosecution. It's not a constitutional right. It's a 20th Century invention that has it's origins in sympathy for the accused. The principle, if there's one, of entrapment is that there's limited sympathy because of the need to balance the needs of law-abiding citizens. It also depends on the crime. The law looks negatively at police entrapment in cases of consensual, victimless crimes. In order for entrapment to occur, police must initiate the encouragement of crime, specifically by any of the following:

    A variation of the entrapment defense is Outrageous Government Conduct. In this case, the focus is on the government rather than the mind of the defendant. The principle is that when government behavior is so offensive and so outrageous, it cannot be the basis for collecting evidence to convict a suspect. Examples might include police infiltration and instances of undercover policing involving romantic liaisons. Some states recognize the defense while others don't.

INSANITY
    The insanity principle bestows upon the government the authority to incarcerate without conviction people who are abnormal and not average, everyday criminals. The defense is usually only seen when the crimes are very serious and the punishment quite severe. A successful insanity defense is not about going free ("walking") but quite the opposite. Insanity impairs mens rea but it operates by affecting the brain (the body) via a mental illness. This is sometimes expressed as Insanity being a legal concept and mental illness a medical condition. The law reserves the right to not have to conform its definitions to those of the medical community, and to treat the whole issue of cureability as irrelevant. Insanity is an affirmative defense -- the defense has to prove it if they raise it, but in practice, whomever brings up the issue first in court has the burden of persuasion. Over the years, various tests have been used to determine insanity, including:

AUTOMATISM
    This is the preferred defense, instead of insanity, whenever it is claimed the defendant acted unconsciously or semiconsciously either due to a physical problem (epilepsy, concussion, or unexplained blackout) or mental problem (childhood trauma, mental things other than insanity, intoxication, and brainwashing).

DIMINISHED CAPACITY
    These are syndromes that are always emerging, but in general, are perhaps best exemplified by the various stress and stress-related disorders. The principle of diminished capacity is that there are some mental diseases and defects that do not affect people sufficiently enough to make them insane, but the law recognizes them nonetheless. The law has really backed itself into a corner because it reserved the right to depart from definitions of the medical community, so all sorts of "legal diseases and defects", so to speak, are possible. Some jurisdictions, however, are quite tough, and will not even recognize anything short of insanity. Jurisdictions in California, for example, are known for having a "you're either sane or insane" policy, but much of this is caving into public opinion. The MPC, on the other hand, recommends admitting evidence of diminished capacity and/or any impaired mental abilities affecting the mens rea element in all crimes. The disease or defect supposedly possessed by the person suffering from the disorder is treated the same as insanity (affecting the body, hence denying actus reus, and being an excuse to crime). The standards of proof are almost always lowered, from beyond a reasonable doubt to preponderance of the evidence, but this is common in insanity cases too. The net effect of a successful diminished capacity defense is typically a lesser punishment or a charge reduction (murder to manslaughter, e.g.).

    Syndromes are medically-supported complexes that diminish capacity and reduce the person's responsibility. They are at the heart of scientific evidence and evidence law. The experts must testify to both the science and the law. There might be scientific evidence that sugar, for example, can diminish capacity, but an expert or meta-expert needs to be found that can apply that scientific evidence to the facts in any individual case to address the material issue of responsibility. Many difficulties stand in the way of getting this kind of evidence admitted, most recently the Daubert rule, that the syndrome's effects must have been studied so scientifically that it's possible to calculate Type I and Type II errors, for example, or to estimate the power or quality of research. Not all states use the Daubert rule. Some rely upon the Frye Test or some variation of it, which is whether or not the syndrome in question has received general acceptance in a scientific discipline, which gets at how much research has been conducted and its review or receipt in a professional association, for example, although science which tends to attract controversy can be assessed under a different, but related test, the Coppolino Test. Still other jurisdictions may use the Marx Test, which simply allows the expert to educate the jury about the science and let them form their own inferences.

INTERNET RESOURCES
The Daubert Rule and its Applications
Emerging Defenses to Crime
The Evidence Site

PRINTED RESOURCES
American Law Institute. (1985). Model Penal Code and Commentaries. Philadelphia: ALI.
Blackstone, W. (1978). Commentaries on the Laws of England. NY: Garland.
Dershowitz, A. (1994). The Abuse Excuse. Boston: Little, Brown & Co.
Fletcher, G. (1978). Rethinking Criminal Law. Boston: Little, Brown & Co.
Fletcher, G. (1983). "Justification" pp. 941-46 in S. Kadish (ed.) Encyclopedia of Crime and Justice.
Goldstein, A. (1983). "Insanity" pp. 735-42 in S. Kadish Encyclopedia of Crime and Justice. NY: Free.
Posner, R. (2004). Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press.
Renteln, A. (2005). The Cultural Defense. NY: Oxford Univ. Press.

Last updated: July 08, 2006
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