PRINCIPLES OF AMERICAN CRIMINAL LAW AND PROCEDURE University of Wroclaw Law School Wroclaw, Poland March 28-29, 2010 Edward Carter Supervisor Financial Crimes Prosecution Illinois Attorney General s Office Adjunct Professor of Law - Chicago Kent College of Law 2008 by Edward Carter ecarter@kentlaw.edu Lecture Four BASIC PREMISES OF AMERICAN CRIMINAL LAW: DEFENSES 1. In American criminal law all defenses have not been codified a. Criminal defenses can be found in different places: the U.S. Constitution, a state constitution, statutes, and common law b. In this portion of the lecture we will examine some of the major defenses that exist in American criminal law i. This lecture makes no attempt to examine all such defenses 2. Classification of defenses a. All criminal law defenses are classified in several broad categories b. Simple vs. affirmative defenses i. The first major division of criminal law defenses is the division between simple and affirmative defenses (1) Simple defenses Require the defendant to do nothing. The defendant can stand mute or he can simply deny an element or elements of the offenses with which he has been charged In either situation the government is put to its burden of proving its case 1) If the defendant stands mute the government must prove all of the elements of the offense that it has charged the defendant with committing 2) If the defendant admits some elements and denies others the government need only 1
(2) Affirmative defenses prove those elements which the defendant did not admit Generally affirmative defenses require the defendant to do three things c. Categories of affirmative defenses Assert the defense Produce some evidence to show it is applicable Persuade the trier of fact that the evidence establishes the defense 1) In some instances the defendant does not have this burden. Whether this burden is imposed depends upon the jurisdiction and the defense With affirmative defenses if the defendant does not assert the defense or if he asserts it and fails to adduce evidence the defense is lost i. There are a number of broad categories of affirmative defenses, three of which we will examine in this lecture ii. (1) Excuse defenses (2) Justification defenses (3) Non-exculpatory defenses Excuse defenses (1) Excuse defenses rest on the conclusion that because of some condition that exists in the defendant he should not be held responsible for his criminal acts We will examine six excuse defenses (iv) (v) (vi) Insanity Intoxication Infancy Duress Entrapment Outrageous government conduct 2
(2) Insanity (d) History Today Insanity test Recognized as early as the 13 th century 1) Entitled defendant to a pardon 16 th Century 1) Recognized as a defense Abolished in some states 1) Allow the defendant to establish that he was suffering from a mental illness that prevented him from forming the mens rea element of the offense Other states 1) Insanity remains a defense but one that is rarely used as a defense 3 a) When used is seldom successful McNaghten Test 1) Most widely used Insanity under the McNaghten Test 1) At the time of the crime the defendant a) Had a disease of the mind (temporary or permanent) and due to that disease b) He did not know the nature and quality of his act or c) He did not understand the act was wrong Supplement by the irresistible impulse test 1) Defendant is suffering from a disease of the mind which makes it impossible for him to control his actions Insanity defense procedure
(3) Intoxication The defendant must raise the defense and then adduce some evidence to support his assertion of insanity After that the procedure is different in different states 1) Some states 4 a) That is sufficient to shift the burden to the government to produce evidence to show the defendant was sane 2) Other states a) The defendant must then establish by some quantum of evidence that he was insane Determination of sanity 1) The jury determines whether a defendant was insane 2) The jury can ignore psychiatric or psychological testimony and base its finding merely on non-expert testimony Depending on how the defendant became intoxicated, intoxication may be a defense Involuntary intoxication When a defendant is involuntarily intoxicated, his intoxication is a defense if that intoxication is such that he reaches a level of mental dysfunction that he could satisfy the test for insanity There are four forms of involuntary intoxication 1) Coerced intoxication 2) Pathological intoxication 3) Unknowing ingestion intoxication 4) Prescribed drug intoxication Voluntary intoxication Not a defense at common law
(4) Infancy (5) Duress Common law 20 th Century Change 1) Allowed if the intoxication was such as to negative the mens rea of the offense with which the defendant is charged with committing Late 20 th Century 1) Some states by statute returned to the common law rule Less than 7 yrs old 1) Child conclusively deemed not capable of forming mens rea Seven years of age through 14 years old 1) rebutably presumed to lack capacity to form mens rea Over age 14 Today 1) Presumed to have the capacity to form mens rea Many states have made changes to the ages the common law used 1) Age is physical age not mental age Juvenile courts 1) Less than 16 or 17 years of age 5 a) Depending on the state may tried through juvenile justice system 2) Age 16 or 17 and older a) Depending on state may be tried as adult The defense of duress is an excuse because its underlying theory is a person should not be excused from responsibility for performing a criminal act when he does
so under compulsion As noted in the discussion of the actus reus element of offenses duress does not render a defendant s act involuntary because though performed under duress the act was the defendant s conscious volitional act The defense of duress is available when (6) Entrapment Defendant receives a threat from another person The threat puts the defendant in reasonable fear of imminent death or great bodily harm to himself 1) Third persons 2) Economic harm The gist of the entrapment defense is that the defendant asserts that while he committed the offense, he should be acquitted because the action of the government during the investigation induced him to commit it. Hawaii v. Tookes, 67 Haw 608 (1985) As a practical matter this defense is not available to a person who has previously engaged in the type of criminal activity being investigated. To be able to use the defense the defendant must introduce evidence that He was not pre-disposed to commit the offense and Government inducement to commit the offense 1) Giving a defendant an opportunity to commit the offense is not an inducement 2) The inducement must be extraordinary (e.g offering huge profit for committing a minor offense vs. large profit for committing a serious offense) United States v. Millet, F.3d (7 th Cir. 2007) The defense is not used frequently and is seldom successful It is not used frequently because many states require that for the defendant to be able to assert the defense he must admit committing the criminal act 6
iii. (7) Outrageous government conduct 1) Eaglin v. Welborn, 57 F3d 496 (7th Cir. 1995) It is seldom successful because merely giving the target the opportunity to commit the offense is not sufficient to constitute entrapment and unless the government s conduct is really egregious juries do not like the defense The outrageous government conduct defense is different from the entrapment defense. The gist of the outrageous government conduct defense is that the government s actions in the sting operation were so outrageous that the defendant should be acquitted notwithstanding that he committed the crime. This defense is really in the nature of a sanction imposed against the government for the judicially perceived egregiousness of the government s conduct United States v. Simpson, 813 F2d 1462 (9 th Cir. 1987) The defense is seldom used, is seldom successful, and is controversial because of its subjectiveness Justification defenses United States v. Miller, 891 F2d 1265 (7 th Cir. 1989), Easterbrook, J., Concurring (1) Justification defenses are different from excuse defenses because justification defenses focus on the existence of special circumstances which motivate the defendant to act and the harm caused by the defendant s action is less than if he had not acted. In such circumstances the defendant s criminal acts are considered justified (2) Two of the more important justification defenses Self-defense Necessity (3) Self-defense The defense of self defense is available to a defendant when he 7
(iv) Reasonably believes his is in imminent danger of unlawful bodily harm 1) Defense of home 8 a) In some states deadly force may be used against an intruder even if the defendant was not placed in apprehension of unlawful bodily harm i) Defendant must merely reasonably believe intruder will commit a felony in the home or injure an occupant Reasonably believes the use of force is necessary to avoid the danger Was not the aggressor Uses a reasonable amount of force against the aggressor Duty to retreat (4) Necessity Non-deadly force 1) No duty to retreat Deadly force 1) Home or business a) No duty to retreat 2) Other locations a) Depends on the state The gist of the necessity defense is that the defendant was faced with a choice of evils Obey the law which would have resulted in an evil Disobey the law which resulted in a lesser evil Distinction from duress Duress the source of danger or compulsion must be from another human being Necessity the source of danger must be from the
iv. forces of nature The defense is available when the defendant Non-Exculpatory defenses Is faced with a clear danger and imminent danger Can reasonably expect his act to be effective in abating the danger Has no legally permissible alternative that will be effective (1) Non-exculpatory defenses differ from the excuse and justification defenses in that non-exculpatory defenses allow a defendant to escape criminal responsibility for his conduct for reasons unrelated to his guilt, innocence, or responsibility. Factual determinations necessary to establish the nonexculpatory defenses are never made by a jury (2) Three important non-exculpatory defenses are examined in this lecture Double jeopardy Ex-post facto law Speedy trial (3) Double jeopardy The Fifth Amendment provides that no person shall be tried twice for the same offense. This provision, called the double jeopardy, clause has two aspects: it prohibits successive prosecutions by the same sovereign for the same crime and successive punishments by the same sovereign for the same crime. Same sovereign The double jeopardy clause only prohibits the same sovereign from pursuing a second prosecution or imposing a second punishment for the same crime 1) It does not prohibit different states or a state and the federal government from successively prosecuting a defendant for the same offense a) Heath v. Alabama, 474 U.S. 82 (1985) 9
(d) (e) Successive prosecutions for the same offense The double jeopardy clause prohibits successive prosecutions for the same offense 1) It does not prohibit simultaneous prosecution for the same offense a) Headlee v. State, 205 Ind. 544 (1929) In double jeopardy clause jurisprudence whether two offenses are the same offense is determined by looking at the elements of each offense 1) If each offense has an element that the other offense does not, then the offenses are different and even though a second prosecution may be based on the same conduct, if it is based on an a different offense as that term is used, then the double jeopardy clause does not bar the second prosecution. a) United States v. Dixon, 509 U.S. 688 (1993) 2) Fixed cases When jeopardy attaches Bench trial a) Aleman v. The Honorable Judges, 138 F.3d 302 (7 th Cir. 1998) 1) When first witness is sworn Jury trial 1) When jury is empaneled Successive punishments The problem of successive punishments arises out of the fact that civil statutes often impose fines or other monetary penalties and allow for the revocation of professional and business licenses by an administrative agency. Such provisions raise a question of whether they are punishments, the imposition of would bar a criminal punishment 10
(4) Ex post facto law 1) Fines and loss of business or professional licenses are not considered punishments under the double jeopardy clause 11 a) Hudson v. United States, 522 U.S. 93 (1997) The U.S. Constitution prohibits the adoption of ex post facto laws (5) Speedy trial A defendant can assert that provision as a defense if the statute he is charged with violating is an ex post fact statute An ex post facto law is a law that makes past conduct a crime or which increases a penalty for past conduct Once a defendant is charged with a crime the 6 th Amendment guarantees him a speedy trial Failure to provide the defendant with a speedy trial will result in dismissal of the charges and bar recharging The right to a speedy trial differs based on whether the defendant is in custody Defendant not in custody 1) Defendant must affirmatively demand a speedy trial a) If the defendant demands a speedy trial he must be brought to trial within 160 days b) If the defendant does not demand a speedy trial the government is not required to bring him to trial within any particular period of time Defendant in custody 1) The defendant need not demand trial 2) The defendant must be brought to trial within 120 days of his arrest Breaking the term
The speedy trial term may be stopped in different ways 1) Defendant files any motion other than one for discovery 2) Defendant agrees to a continuance 3) If defendant is in custody he is released on bond 12