General Foundations of Criminal Law
Actus Reus + Mens Rea + Causation + Attendant Circumstances = Crime
Majority of Criminal Law is Codified/Statutory
If a statute cannot be read to prohibit a given action, it is usually not a crime.
Common law is not irrelevant – Common law is important in interpreting the meaning of the
criminal statute.
Statutory Interpretation
Methods of Interpretation
Statute’s Words
Legislative History
Cases/Common Law
Public Policy
Rule of Lenity
When the statute is ambiguous, the ambiguity is resolved in favor of the defendant.
Ways of Charging Criminal Offenses
Grand Jury issues an indictment.
Prosecutor issues a criminal information.
Burden of Proof in Criminal Cases
Typically, prosecution must prove every element (material or non-material) of the offense beyond a
reasonable doubt.
Non-material element such as venue – some jurisdictions do not require prosecution to
prove beyond a reasonable doubt.
There is no Constitutional requirement that affirmative defenses have to be proven by the
prosecution.
Typically, affirmative defenses must be proven by the defense.
MPC
Elements
Part of the definition of the crime.
Essential facts which, if proven by the prosecution, justify conviction of the crime.
Defenses
Must be raised by the defendant.
Once raised by minimally sufficient evidence, the prosecution must disprove beyond a
reasonable doubt.
An example is self-defense.
Affirmative Defenses
Depend on facts independent of the crime elements.
Do not disprove the elements.
Burden to prove affirmative defenses is on the defense.
Standard is by a preponderance of the evidence.
Example is emotional disturbance.
On appeal of a criminal case, court views the evidence in a light most favorable to the government.
At the end of prosecution’s case, ALWAYS make a motion for directed verdict.
High burden of proof puts a premium on accurately defined criminal offenses.
Constitutional Considerations
Notice
Prior to the commission of the crime, there must have been a prohibition on the conduct. Ex
post facto – cannot prosecute for crime that was not prohibited prior to its
commission.
Sufficient clarity of definition so that the statute is not vague.
Vagueness means that men and women of common intelligence could disagree as to the
true meaning.
Rule of Lenity – when the statute is ambiguous, the ambiguity is resolved in favor of the
defendant.
Deference to legislative definition as opposed to judicial expansion.
Crime definition should apply equally to individuals as opposed to being arbitrary.
Bill of Attainder
Must have trial.
Overbreadth of Statute
Prevention of Cruel and Unusual Punishment – 8 Amendment
th
Vehicles for Appeal
Constitutionality
Insufficiency of Evidence
Evidence Admission
Jury Instructions
Punishment Theories
Reasons for Punishment of Wrongdoers
Deterrence
Specific
Deter specific defendant from future criminal activity.
General
Deter society from criminal activity through the punishment of individuals.
Looks forward.
Rehabilitation
Modify the behavior of the wrongdoer.
Looks forward.
Incapacitation
Incapacitate the wrongdoer so that they cannot commit the crime again.
Looks forward.
Denunciation/Shame
Retribution
Punishment for sake of punishment.
“Just Desserts”
Looks back.
Punishment may be a factor in determining whether a particular act should be a crime.
Legislature determines.
Punishment may also factor into whether or not a particular defendant should be prosecuted given the
limited funds available.
Proportionality
Punishment should be in proportion to the harm to society.
Three-prong test
Gravity of the offense
Comparison of punishments for more serious crimes within the jurisdiction.
Comparison of punishments for more serious crimes outside the jurisdiction.
In some instances, there may be more required for liberty, due process, etc. under a state constitution and
therefore the defense may use state law or the state constitution.
U.S. Constitution is merely the minimum standard.
Capital Punishment
In most states, there must be aggravating and mitigating circumstances.
Supreme Court indicates that death penalty is looked at by how it is regarded by society and how it is in
accord with the dignity of man.
Outside the U.S., the death penalty is not widely accepted.
Interest of Crime Victims
Some states allow compensation for crime victims.
Victims impact statements.
Elements of The Crime
Actus Reus
The physical element.
The “wrongful act.”
Act must be voluntary or the omission to perform an act of which he is physically capable.
Mere thoughts cannot be a crime.
Involuntary Acts under the MPC
A reflex or convulsion.
A bodily movement during unconsciousness or sleep.
Conduct during hypnosis or resulting from hypnotic suggestion.
A bodily movement that otherwise is not part of the effort or determination of the actor,
either conscious or habitual.
Omission to perform an act can also satisfy the actus reus.
In order for omission to satisfy actus reus, there must be a legal duty to act.
Legal duty premised on
Statute
Example – must file taxes by April 15 – failure to act is a criminal
th
violation.
Status relationship
Example – Mother/Child
Contractual duty
Example – Doctor/Patient
Voluntary assumption of care of another
Example – Caregiver/Child
Jury must be instructed as to legal duty and the basis for that duty in the particular case.
Possession can satisfy actus reus.
Possession can be of two types
Actual possession
Constructive possession – the ability to exercise dominion and control over the item.
Status or condition CANNOT satisfy actus reus.
Example – being addicted to narcotics is a status or condition and does not satisfy the actus reus
element.
Mens Rea
The “wrongful mind.”
A criminal state of mind.
Some mens rea terms
Malice aforethought
Intent
Knowledge
Recklessness
Negligence
Willfulness
Premeditation
Deliberation
Scienter
Willful blindness
Two approaches to mens rea
Culpability – was there a “wrongful” mind?
Elemental – looks at specific elements of the crime.
Specific and General Intent
Common law approach of looking at mens rea.
Specific Intent
Specific intent crime is a crime that requires particular mens rea.
A particular mental state is spelled out in the statute.
Additional element of intent in the statute makes the crime a specific intent crime.
General Intent
No particular mental state is spelled out in the statute.
All crimes that are not specific intent crimes or strict liability crimes would be
general intent crimes.
MPC Approach to Mens Rea
Four kinds of culpability
Purposely
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such circumstances or he
believes or hopes that they exist.
Knowingly
A person acts knowingly with respect to a material element of an offense
when: (i) if the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and (ii) if the element involves a result of his conduct,
he is aware that it is practically certain that his conduct will cause such a
result.
In jurisdictions adopting MPC, “willfully” means knowingly.
Circumstantial evidence can be used to determine knowledge.
Recklessly
A person acts recklessly with respect to a material element of an offense when
he consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and purpose of the actor's
conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would
observe in the actor's situation. Key factors constituting recklessness include
Substantial and unjustifiable risk
Conscious disregard of risk.
Gross deviation from standard of conduct.
Under MPC, if no mental state is provided by statute, the mental state is
presumed to be “recklessly”.
Negligently
A person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of
such a nature and degree that the actor's failure to perceive it, considering the
nature and purpose of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that a reasonable person
would observe in the actor's situation. Criminal negligence aspects
Substantial and unjustifiable risk.
Should have, but failed to perceive risk.
Gross deviation from the standard of care.
Difference between criminal and civil negligence is that a “gross deviation”
from the standard of care is required for criminal negligence.
Under MPC, if evidence establishes a higher mental state than required by the actual elements of
the crime (ex. D acted purposely when statute requires knowingly), jury can still convict of
crime.
Willful Blindness
Occurs when the defendant claims to not have knowledge of the criminal offense but facts
indicate that he should have known.
Transferred Intent
Creation of common law.
Result of the criminal activity is the same. Prototypical example is the shooting of one
person while trying to shoot another.
Punishment would still be the same if crime had been committed.
Exceptions to Doctrine of Transferred Intent
Misidentification
Expanded intent
Explicit statement in statute with no transferred intent.
Different harm/different crime.
Strict Liability
Offenses that do not have any mens rea requirement are strict liability crimes.
Factors to determine if offense is strict liability
General provision on mens rea in statute
Severity of punishment prescribed (low = strict liability)
If there is any prison time, under the MPC it cannot be a strict liability
offense.
Whether legislative policy would by undermined by a mens rea. (if yes = strict
liability)
Public welfare offense (if yes, could be strict liability)
Stigma (low stigma = strict liability)
Common law derived is typically not strict liability.
Malem in se v. malem prohibidim
Standard reasonable properly expected of person.
MPC attaches mental state requirement to all crimes, thus there is no strict liability. Even if
statute is silent, the mental state is recklessness.
Mistake of Fact
Common Law
Specific intent crimes
Good faith belief that act was lawful.
Mistake of fact can be reasonable or unreasonable.
Mistake of fact will exculpate defendant if it negates mens rea described in the
statute.
General intent crimes
Good faith belief that act was lawful.
Mistake of fact must be reasonable.
Generally, a reasonable mistake of fact is a non-culpable mistake of fact
that will negate the mens rea.
Strict liability crimes
Mistake of fact CANNOT be a defense in strict liability crimes.
Mistake is irrelevant.
There is no mens rea to negate in strict liability offenses.
MPC
Rule is the same regardless of whether it would be characterized as specific or
general intent under common law.
Question is does the defendant have the specific mens rea as defined by the statute and
does the mistake negate the specific mens rea. Must negate state of mind required for
crime.
Not available if guilty of another offense
Reduces grade and degree of offense or complete defense if specific intent
crime.
Not available in negligent or reckless use of force.
Mistake of Law
Common Law
Starting Point - Ignorance or mistake of the law is not an excuse, whether reasonable or
unreasonable.
Exceptions
Reasonable reliance on a statement of the law by a public official
who has authority to interpret or enforce the law.
If the criminal statute, on its own, requires defendant be aware of the
law.
Causation
The link between the defendant’s conduct and the social harm that occurred.
Two Elements of Causation
Cause in Fact (Actual Causation)
“But for” the defendant’s voluntary act or omission, would the social harm have occurred
when it did?
If someone accelerates the death, that person has caused the death.
Multiple Actual Causes
Concurrent Sufficient Causes
Both actors are liable for harm.
Obstructed Cause
Actor who causes injury but is not actual cause of offense.
Obstructed keeps actor from being charged.
After determining if actual cause is present, then look for proximate cause.
Legal Cause (Proximate Cause)
Broader than actual causation.
In the real world, there is not only one cause of harm.
If we are going to hold one person responsible for the harm, they must deserve to be held
accountable.
This is a policy decision.
There are very few bright lines to determining proximate cause.
Intervening Causes – something coming between voluntary act and social harm.
Factors to evaluate whether defendant was the proximate cause.
De Minimus – when a defendant’s causal responsibility for ensuing harm is
insubstantial in comparison to that of an intervening cause.
Intended Consequences Rule – jury will look backwards from the social
harm until they find an intent to cause that harm.
Apparent Safety Doctrine – when a defendant’s active force has come to
rest in a position of apparent safety, the court will follow it no longer.
Voluntary Human Intervening Cause – free will intervention of human
being is a superseding cause of harm Foreseeability of the Intervening
Cause
Responsive Intervening Cause - an act that occurs in reaction or
response to the defendant’s prior wrongful conduct. Typically, does not
relieve the initial wrongdoer, unless the response was highly abnormal
or bizarre.
Coincidental Intervening Cause – an act that does not occur in response
to the original wrongdoer’s conduct. Unless cause was foreseeable, the
original wrongdoer is relieved of responsibility.
Omission – a failure to act will rarely, if ever, serve as a superseding,
intervening cause.
If no intervening causes there is a direct causal connection.
MPC
Purposely and knowingly – Result must be within contemplation of actor
Recklessly or negligently – Actor is aware or should be aware of the risk
Attendant Circumstances
Jurisdiction over the accused
Five principles upon which criminal jurisdiction over an act outside of U.S.
Territorial – where the crime occurred.
Objective Territorial Jurisdiction – allows prosecution to reach acts committed outside
of U.S. but intended to have consequences inside the U.S.
Nationality – nationality of the offender.
Protective Principle – protection of national interests.
Passive Personality – nationality of the victim.
Universality – custody of the offender is sufficient for certain crimes (war crimes, genocide,
human rights violations, etc.)
Venue
In some jurisdictions, prosecution must prove crime was committed in the venue in which the case is
brought.
Acts of the Defendant
Proof that defendant was the perpetrator of the crime.
Who may be a defendant under the statute.
Corporations as defendants.
Corporations are routinely found to be “persons” for the purposes of the criminal charge.
Concurrence of the Elements
The elements of the offense must all concur.
Cannot form intent to kill a week after the act occurs – accidentally kill someone and then a week
later decide that it was a good thing person was killed.
Specific Crimes
Homicide
Homicide Requires a Dead Body
In some cases, the body (corpus delecti) is not necessary and can be shown by
circumstantial evidence.
Some states include fetuses and human beings together. Some separate the two. Some do
not include fetuses. Depends on the statute.
What constitutes death?
Most jurisdictions, at common law, utilized heart death.
Many jurisdictions have incorporated brain death as a measure of death.
Year and a Day Rule
At common law, a defendant could not be prosecuted for homicide unless the victim
dies within a year and a day of the act inflicting the injury.
Most jurisdictions prescribe time limits by statute.
Common Law Mens Rea
Malice aforethought
Express
Deliberate intention to unlawfully take the life of another.
Implied
Act with a conscious disregard for human life.
Circumstances of the killing shown an abandoned and malignant heart.
Other common law mens rea terms include willful, deliberate, pre-meditated, etc.
Degrees of Murder
Jurisdictions may use different degrees to define murder.
Premeditation and Deliberation are terms used to distinguish first and second-degree
murder.
Evidence of premeditation and deliberation can be shown by
Planning activities
Motive as a way of showing mens rea
Pre-conceived design
Murder under the MPC
Criminal homicide constitutes murder when it is committed purposely or knowingly.
Voluntary Manslaughter
Common law elements
Most jurisdictions do not require an intentional killing, some jurisdictions require an
intentional killing.
Dead body or evidence of a killing.
Adequate provocation.
Mere words do not constitute adequate provocation, unless they are
informational words (words that express that someone has been killed,
etc.).
Categories of provocation include substantial physical injury or substantial
physical assault, mutual quarrel or combat, illegal arrest, or adultery with
the offender’s spouse.
Sudden quarrel or heat of passion.
No cooling time.
Causal link between provocation, passion, and killing.
MPC - Criminal homicide constitutes manslaughter when
It is committed recklessly, or
A homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is a reasonable explanation or
excuse.
Reasonableness is viewed subjectively as actor believes the situation to be.
Unintentional Killings - Involuntary Manslaughter & Negligent Homicide
Common Law – Involuntary Manslaughter
Killing is committed during commission of an unlawful act other than a felony. Killing
is committed during commission of a lawful act done in an unlawful manner likely to
cause death or great bodily harm.
MPC – Negligent Homicide
Criminal homicide constitutes negligent homicide when it is committed negligently.
Felony Murder
Common law indicated that if killing happened during commission of a felony, malice was
implied and the defendant could be charged with the murder. Limitations to the Felony
Murder Rule
Inherently Dangerous Felony – some states require that the underlying felony be
inherently dangerous.
Some courts look at dangerousness in abstract.
Some courts look at dangerousness based on specific facts and
circumstances of the case.
Dangerous Act – requires proof that the defendant performed some act during the
commission of the felony that was clearly dangerous to human life.
Merger – Most states exclude lesser degrees of homicide (voluntary and involuntary
manslaughter) and some even exclude assaults.
Causation – there must be a causal link between the felony committed and the
murder.
Co-felons – some states refuse to elevate the death of a co-felon by third party to a
murder charge against the remaining felons.
MPC abolishes felony murder.
Most states have retained the felony murder rule.
Felony murder dispenses with mens rea requirement for murder. Thus, felony murder approaches
strict liability. However, it is not truly strict liability because there is a necessary mens rea for the
underlying felony.
Misdemeanor Manslaughter
Commission of a misdemeanor that results in a killing allows a charge of misdemeanor
manslaughter.
Some jurisdictions follow.
Rape/Sexual Assault
Common Law Elements
Carnal knowledge
Forcibly
Against her will
Vaginal penetration required
Marital immunity rule
MPC Elements
Sexual intercourse
With female, not his wife
Compulsion to submit using force, threat of death or injury or pain to be inflicted on anyone
OR
Impaired her power to appraise or control her conduct (drugs/intox) OR
Unconscious female OR
Under 10 years old
Statutes vary with regard to the following elements:
Degrees
Age of victim
Forcibly or without consent (on whom to place the focus)
Against will
Gender of victim or neutral?
Spousal defense?
Robbery
Includes a taking of the property of another by force or intimidation.
Specific intent crime because of the additional intent of intent to use force or intimidation.
Burglary
Common Law Elements
Breaking and entering
Dwelling house of another
At nighttime
With intent to commit a felony therein.
Most jurisdictions have removed the requirement of the act occurring at nighttime.
Theft/Larceny
Forms of Theft/Larceny
Embezzlement
Signified by entrustment situation.
When one receives the possession of property lawfully because it is entrusted to him and
then converts the property to a use not authorized by the owner.
Obtaining property by false pretenses
Knowingly and with design uses fraudulent representation to obtain property from
another who intends to part with possession and title.
Larceny by trick and device
When one obtains possession of the property of another by some trick or device and the
other person does not intend to transfer title to the property.
Most states have adopted a consolidated theft statute that covers all.
Common Law Elements
Taking
Asportation (taking away)
Personal property of another
With intent to permanently deprive
Receiving Stolen Property
Typical statute
No person shall receive, retain, or dispose of property of another knowing or having
reasonable cause to believe that the property has been obtained through commission of a theft
offense.
Inchoate Crimes
Attempt
Attempt is somewhere between mere preparation (not a crime) and the act itself (a crime).
The key is determining at what point the attempt becomes a criminal act.
Tests for determining whether act has surpassed mere preparation sufficient to be an attempt Last
Act
Must have performed last possible act prior to completion of the crime.
Physical Proximity
How close in physical proximity is the actor to committing the crime.
Dangerous Proximity
Factors
Nearness of danger
Greatness of harm
Degree of Apprehension
Indispensible Element
Must have tool necessary to complete the crime.
Probable Desistence
Act which in ordinary course would result in the intended crime without extraneous
factors.
Res Ipsa Loquitur
The act has no other purpose but the commission of the crime.
MPC
Substantial step in committing the crime.
Mens rea for attempt is the specific intent to commit the underlying crime.
Policy reasons behind attempt as a crime
Deterrence
Rehabilitation
Retribution
Defenses to Attempt - Impossibility
Factual Impossibility – the defendant misperceives the facts, but if the facts were as the
defendant believes them to be, the defendant could accomplish the object crime.
Pickpocket stealing from an empty pocket.
Under common law, factual impossibility was NOT a defense.
Legal Impossibility – when the law does not prevent the goal that the defendant sought to
achieve.
Pure - Person believes they are committing a crime when they really are not. Hybrid –
If the actor’s goal is illegal, but commission of the crime is impossible due to a factual
mistake regarding the legal status of some attendant circumstance that constitutes an
element of the offense.
Offering a bribe to a juror who is not a juror.
Under common law, legal impossibility WAS a defense.
Modern trend is away from either form of impossibility as a defense.
Defenses to Attempt – Abandonment
Abandonment must be
Voluntary
Complete
Solicitation
Common Law Elements
Asking, enticing, inducing, inviting, commanding, requesting, hiring of another To
commit a crime
Under common law, some jurisdictions indicate that if communication is not received, there is no
solicitation.
MPC
Actor’s purpose is to promote or facilitate the commission of a substantive offense With
that purpose, he commands, encourages or requests another person to engage in conduct
that would constitute the crime
Under MPC, uncommunicated solicitation is irrelevant.
Leaving a message that does not get received constitutes solicitation.
Complete and voluntary renunciation is an affirmative defense for solicitation under the MPC. Innocent
instrumentality – person who acts at behest of another without mens rea for crime is not guilty of the
crime.
Conspiracy
Elements of conspiracy
Agreement
Plurality – more than one person
Essential plan – do not have to know all details, just essential plan
Unlawful act
Knowledge of
Agreement
Commitment to essential plan
Over act – some statutes require an overt act
Mere knowledge is not sufficient for conspiracy.
Wharton’s Rule – when the conspiracy by its very nature requires a plurality, conspiracy cannot be
charged.
Conspiracy to commit adultery would not be chargeable because it requires two people by its
very nature.
Government must prove
Conspiracy with an illegal purpose
Defendant was aware of the conspiracy
Defendant knowingly became a part of it
Entered into agreement with at least one other person
Objective was violation of the law
Conspiracy can be proven by circumstantial evidence.
Conspiracy may be implied by circumstances and actions of parties.
Factors to determine if it is a single conspiracy
Whether a common goal exists
The nature of the underlying scheme
Whether the participants of the alleged multiple schemes overlapped
Policy Rationale
Offense of conspiracy protects the public from concerted criminal activity.
In order to be liable for substantive offenses committed by a co-conspirator, the offense must be part
of the conspiracy and in furtherance of it.
Accomplice Liability
Common Law
Distinctions
Principals in First Degree
Actually perpetrated the offense
Principals in Second Degree
Actually or constructively at the scene of the crime and aided or abetted its
commission
Accessories Before the Fact
Aided or abetted the crime but were not present at its commission
Accessories After the Fact
Rendered assistance after the crime was complete
Common law rule was that accessories could not be convicted without prior conviction of the
principal.
Two Intents for Aiding and Abetting
Intent to commit underlying crime.
Intent to aid and abet.
Natural and Probable Consequences Doctrine
People who facilitate or encourage the commission of a crime may find themselves liable for the
crime through the natural and probable consequences doctrine.
Even if principal is not convicted or even charged, accessory may be prosecuted.
Not followed in all jurisdictions.
Abandonment of Accomplice Liability
Must be complete and voluntary
Might need to communicate to law enforcement
Might have to stop crime from being committed
Defenses
Self-Defense
Possible Standards
Objective – what a reasonable person would do
Subjective – what the defendant would do
MPC uses strictly subjective standard
Mixed – “a reasonable person in the actor’s situation”
Majority rule
General principles for using self-defense
Necessity
If threat is not immediate, use of force is usually not considered necessary.
Proportionality
Reasonable belief
Some courts require that victim retreat if possible. Three possible exceptions
Never required to retreat from sudden attack or if there is belief that attacker is going to use a
deadly weapon.
Affirmative obligation to retreat when participating in voluntary mutual combat before using
deadly force.
When attacked in dwelling one does not have to retreat prior to using deadly force.
Typically, does not extend outside of dwelling.
MPC indicates do not have to retreat in place of employment.
Aggressor does not have right to self-defense. However, if tables turn and initial aggressor become
victim, can assert self-defense.
Battered Spouse Syndrome
Can be justification for self-defense.
Can be a separate defense.
Can constitute adequate provocation and reduce murder to manslaughter.
Defense of Others
Common Law
Required defense to be defending a family member.
Key elements of using deadly force in the defense of others
Defendant has burden of proof because it is an affirmative defense.
Amount of force used must be reasonable.
Reasonable belief that intervention was lawful.
Level of danger must be such that victim is in imminent danger of death or serious bodily
injury
Defense of property
General rule is that deadly force cannot be used to protect property.
Some courts allow deadly force to defend dwelling house.
Duress
Common Law
Immediate threat of death or serious bodily injury
Well grounded fear that threat would be carried out
No reasonable opportunity to escape
Did not put himself in harms way
Necessity
Common Law
Clear and imminent danger
Action would be effective in abating the harm
No adequate alternative
Harm done is less serious than harm prevented
Clean hands
Not prohibited by statutory law
MPC
A defendant faced with clear and imminent danger
Reasonably expects that the action will be effective in abating danger No
legal alternative to abate
Legislature has not precluded the defense as part of the statute
Civil Disobedience
Direct
Protest against a specific law by breaking that specific law.
In some instances, this might be a justifiable defense.
Indirect
Protest against a specific law by breaking other law(s).
Cannot use civil disobedience as a defense to indirect civil disobedience.
Entrapment
Defendant must be pre-disposed to commit a crime.
Prosecution must show beyond a reasonable doubt that defendant was disposed to commit the crime
PRIOR to being approached by government agents.
There are arguments both ways as to whether the test is objective or subjective. Podgor leans
toward subjective.
Different from overzealous law enforcement
Overzealous law enforcement is premised on an objective standard and is related to
misconduct creating due process concerns.
Insanity and Diminished Capacity
Incompetence
Looked at at time of trial.
Elements
Must be able to consult with attorney to a reasonable degree of rational
understanding.
Have to understand charges.
If elements are not met, incompetent is placed in medical facility until such time as
found competent.
When competent, defendant stands trial.
Insanity
Looked at at time of the crime.
Tests for insanity
M’Naghten Rule – Inability to distinguish right from wrong. Need to prove
Mental disease or defect AND
As not to know the nature and quality of the act he was doing OR
Did not know what he was doing was wrong.
Problems with this test
Focus on cognition;
restricts expert testimony to the point where it may be
considered “professional perjury” b/c not allowed to provide
all the facts.
Irresistible Impulse Test – broadens scope of M’Naghten Rule. Must prove
Mental disease or defect AND
Unable to exercise control over actions.
Problems with this test
Doesn’t include people who have been brooding; thinking
about the crime for a long time
Blurry line between what is an irresistable impulse and
what is simply an impulse not resisted
Durham Rule (Product Test) – not criminally responsible if unlawful act was a
product of disease or mental defect. Must prove
Mental disease or defect AND
Action must be a product of mental disease or defect.
Problems with this test
Experts allowed to usurp the role of the jury
How do you define “product”?
Morally blameworthy people could escape liability if b/c of
minimal “defective mind” – found innocent
MPC-ALI Test – combines M’Naghten Rule and Irresistible Impulse Test.
Key distinction is that it does not require one to know the nature and
quality of the act
Since insanity is an affirmative defense, most jurisdictions require defense to prove insanity.
Diminished Capacity
Three Ways Courts Approach Diminished Capacity
Separate defense
Negate intent
Rises to level of insanity
Intoxication
Must determine if intoxication is voluntary or involuntary
Involuntary
Types
Coerced Intoxication
Pathological
Grossly excessive intoxication given the amount to which actor does
not believe he is susceptible
Intoxication by mistake
Intoxication unexpectedly by medicine
Defense to specific and general intent crimes in most jurisdictions.
Voluntary
Intoxication is only a defense to specific intent crimes.
It is merely diminishing the specific intent of the crime.
