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The following discussion comes from your week 3 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research.  In addition, I would recommend utilizing the legal studies program guide.

Part I

Affirmative defenses fall under the categories of justification and excuse. Choose one justification defense (self-defense, duress, etc.) and one excuse defense (infancy, mistake of fact, intoxication, etc.).

Explain how these defenses can be used at trial. Should these types of defenses relieve a person of his or her criminal responsibility?

Part II

The defense of duress cannot be used in cases of murder.

Is this exception reasonable, or are there murder cases where this defense should be allowed?

Source: Image courtesy of Jane F. Kardashian, MD.

complicity

Working together with a
common criminal purpose
and design.

C H A P T E R 7
Parties to Crime
Congress can impute to a corporation the commission of certain criminal offenses and

subject it to criminal prosecution therefor.

– New York Central R. Co. v. U.S., cited in Section 2

1. PARTIES TO CRIME

L E A R N I N G O B J E C T I V E S

1. Identify the four parties to crime at early common law.
2. Identify the parties to crime in modern times.
3. Define the criminal act element required for accomplice liability.
4. Define the criminal intent element required for accomplice liability.
5. Define the natural and probable consequences doctrine.
6. Discuss the consequences of accomplice liability.
7. Determine whether an accomplice can be prosecuted when the principal is not prosecuted or

acquitted.

Often more than one criminal defendant plays a role in the commission of a crime. Defendants work-
ing together with a common criminal purpose or design are acting with complicity. When the parti-
cipation and criminal conduct varies among the defendants, an issue arises as to who is responsible for
which crime and to what degree. This chapter analyzes different parties to crime, along with their ac-
companying criminal liability. Chapter 8 examines crimes that necessarily involve more than one per-
son such as conspiracy and solicitation, as well as another inchoate or incomplete crime, attempt.

principal in the first degree

At early common law, a
defendant who committed a
crime with the help of other
defendants.

principal in the second
degree

At early common law, a
defendant who was present
at the crime scene and
helped a principal in the first
degree commit a crime.

accessory before the fact

At early common law, a
defendant who was not
present at the crime scene
and helped a principal in the
first degree prepare to
commit a crime.

accessory after the fact

At early common law, a
defendant who helped a
principal escape or avoid
arrest, prosecution for, or
conviction of a crime.

principal

A defendant who commits a
crime with the complicity of
other defendants.

accomplice

A defendant who helps a
principal commit a crime.

1.1 Accomplice Liability
At early common law, parties to crime were divided into four categories. A principal in the first de-
gree actually committed the crime. A principal in the second degree was present at the scene of the
crime and assisted in its commission. An accessory before the fact was not present at the scene of
the crime, but helped prepare for its commission. An accessory after the fact helped a party to the
crime after its commission by providing comfort, aid, and assistance in escaping or avoiding arrest and
prosecution or conviction.

In modern times, most states and the federal government divide parties to crime into two categor-
ies: principals[1] and their accomplices, and accessories.[2] The criminal actor is referred to as the
principal, although all accomplices have equal criminal responsibility as is discussed in Section 1.

1.2 Accomplice Elements
An accomplice under most state and federal statutes is responsible for the same crime as the criminal
actor or principal.[3] However, accomplice liability is derivative; the accomplice does not actually have
to commit the crime to be responsible for it. The policy supporting accomplice liability is the idea that
an individual who willingly participates in furthering criminal conduct should be accountable for it to
the same extent as the criminal actor. The degree of participation is often difficult to quantify, so stat-
utes and cases attempt to segregate blameworthy accomplices based on the criminal act and intent ele-
ments, as is discussed in Section 1.

Accomplice Act

In the majority of states and federally, an accomplice must voluntarily act in some manner to assist in
the commission of the offense. Some common descriptors of the criminal act element required for ac-
complice liability are aid, abet, assist, counsel, command, induce, or procure.[4] Examples of actions
that qualify as the accomplice criminal act are helping plan the crime, driving a getaway vehicle after
the crime’s commission, and luring a victim to the scene of the crime. The Model Penal Code defines
the accomplice criminal act element as “aids…or attempts to aid such other person in planning or
committing [the offense]” (Model Penal Code § 2.06(3) (a) (ii)).

In many states, words are enough to constitute the criminal act element required for accomplice li-
ability.[5] On the other hand, mere presence at the scene of the crime, even presence at the scene com-
bined with flight, is not sufficient to convert a bystander into an accomplice.[6] However, if there is a
legal duty to act, a defendant who is present at the scene of a crime without preventing its occurrence
could be liable as an accomplice in many jurisdictions.[7] As the Model Penal Code provides, “[a] per-
son is an accomplice of another person in the commission of an offense if…having a legal duty to pre-
vent the commission of the offense, fails to make proper effect so to do” (Model Penal Code
§ 2.06(3)(a)(iii)).

Example of a Case Lacking Accomplice Act
Review the criminal law issues example in Chapter 1, Section 2. In that example, Clara and Linda go on
a shopping spree. Linda insists that they browse an expensive department store. After they enter the
lingerie department, Linda surreptitiously places a bra into her purse. Clara watches, horrified, but
does not say anything, even though a security guard is standing nearby. As Linda and Clara leave the
store, an alarm is activated. Linda and Clara run away with the security guard in pursuit. In this case,
Clara has probably not committed the criminal act element required for accomplice liability. Although
Clara was present at the scene of the crime and did not alert the security guard, mere presence at the
scene is not sufficient to constitute the accomplice criminal act. Clara fled the scene when the alarm
went off, but presence at the scene of a crime combined with flight is still not enough to comprise the
accomplice criminal act. Thus Clara has probably not committed theft as an accomplice, and only
Linda is subject to a criminal prosecution for this offense.

Example of Accomplice Act
Phoebe, the parent of a two-year-old named Eliza, watches silently as her live-in boyfriend Ricky beats
Eliza. In Phoebe’s state, parents have a duty to come to the aid of their children if their safety is
threatened. Ricky severely injures Eliza, and both Phoebe and Ricky are arrested and charged with bat-
tery and child endangerment. Phoebe probably has committed the criminal act element required for
accomplice liability in many jurisdictions. Phoebe does not personally act to physically harm her child.
However, her presence at the scene combined with a legal duty to act could be enough to make her an
accomplice. Thus Phoebe has most likely committed battery and child endangerment as an accomplice,
and both she and Ricky are subject to a criminal prosecution for these offenses.

174 CRIMINAL LAW

natural and probable
consequences doctrine

A doctrine that some
jurisdictions follow holding
an accomplice criminally
responsible for all crimes the
principal commits that are
foreseeable when the
accomplice assists the
principal.

Accomplice Intent

The criminal intent element required for accomplice liability varies, depending on the jurisdiction. In
many jurisdictions, the accomplice must act with specific intent or purposely when aiding or assisting
the principal.[8] Specific intent or purposely means the accomplice desires the principal to commit the
crime. The Model Penal Code follows this approach and requires the accomplice to act “with the pur-
pose of promoting or facilitating the commission of the offense” (Model Penal Code § 2.06(3) (a)). In
other jurisdictions, if the crime is serious and the accomplice acts with general intent or knowingly or
has awareness that the principal will commit the crime with his or her assistance, intent to further the
crime’s commission could be inferred.[9] In a minority of jurisdictions, only general intent or acting
knowingly that the crime will be promoted or facilitated is required, regardless of the crime’s serious-
ness.[10]

Example of Accomplice Intent
Joullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that requires an accom-
plice to act with specific intent or purposely, Joullian must desire Winnifred to commit prostitution in
the rented room to be Winnifred’s accomplice. Evidence that Joullian stands to benefit from Winni-
fred’s prostitution, such as evidence that he will receive a portion of the prostitution proceeds, could
help prove this intent. If Joullian’s state allows for an inference of specific intent or purposely with seri-
ous crimes when an accomplice acts with general intent or knowingly, it is unlikely that prostitution is
a felony that would give rise to the inference. If Joullian’s state requires only general intent or know-
ingly for accomplice liability regardless of the crime’s seriousness, to be deemed an accomplice Joullian
must simply be aware that renting Winnifred the room will promote or facilitate the act of
prostitution.

The Natural and Probable Consequences Doctrine
Accomplice liability should be imputed only to blameworthy, deserving defendants. However, in some
jurisdictions, if the crime the defendant intentionally furthers is related to the crime the principal actu-
ally commits, the defendant is deemed an accomplice. As with legal causation, discussed in Chapter 4,
foreseeability is the standard. Under the natural and probable consequences doctrine, if the de-
fendant assists the principal with the intent to further a specific crime’s commission, and the principal
commits a different crime that is foreseeable at the time of the defendant’s assistance, the defendant
could be liable as an accomplice.[11] Several jurisdictions have rejected this doctrine as an overly harsh
extension of accomplice liability.[12]

Example of the Natural and Probable Consequences Doctrine
José shows up drunk and unruly at his friend Abel’s house and tells Abel he wants to “beat the hell” out
of his girlfriend Maria. José asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel
drives José to Maria’s house and waits in the car with the engine running. José forces his way into
Maria’s house and then beats and thereafter rapes her. If José and Abel are in a jurisdiction that recog-
nizes the natural and probable consequences doctrine, the trier of fact could find that Abel is an accom-
plice to the battery, burglary, and rape of Maria. Abel appears to have the criminal intent required to be
an accomplice to battery because he assisted José in his quest to beat Maria. If burglary and rape were
foreseeable when Abel drove a drunk and angry José to Maria’s house, the natural and probable con-
sequences doctrine would extend Abel’s accomplice liability to these crimes. If Abel is not in a natural
and probable consequences jurisdiction, the trier of fact must separately determine that Abel had the
criminal intent required to be an accomplice to battery, burglary, and rape; Abel’s intent will be ascer-
tained according to the jurisdiction’s accomplice intent requirement—either specific intent or pur-
posely or general intent or knowingly.

CHAPTER 7 PARTIES TO CRIME 175

F I G U R E 7 . 1 Diagram of Accomplice Liability

1.3 Consequences of Accomplice Liability
An accomplice is criminally responsible for the crime(s) the principal commits. Although the senten-
cing may vary based on a defendant-accomplice’s criminal record or other extenuating circumstances
related to sentencing, such as prior strikes, in theory, the accomplice is liable to the same degree as the
principal. So if accomplice liability is established in the examples given in Section 1; Phoebe is crimin-
ally responsible for battery and child endangerment, Joullian is criminally responsible for prostitution,
and Abel is criminally responsible for battery and possibly burglary and rape. The principal should also
be criminally responsible for his or her own actions. However, occasionally a situation arises where the
principal is not prosecuted or acquitted because of a procedural technicality, evidentiary problems, or a
plea bargain, as is discussed in Section 1.

Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted

Although accomplice liability is derivative, in many jurisdictions the trier of fact can determine that a
defendant is an accomplice even if the criminal actor or principal is not prosecuted or has been tried
and acquitted for the offense.[13] Thus a defendant can be liable for a crime even though he or she did
not commit it and the defendant who did was spared prosecution or found not guilty. While this situ-
ation appears anomalous, if a defendant helps another commit a crime with the intent to further the
crime’s commission, punishment for the completed crime is appropriate. As the Model Penal Code
states, “[a]n accomplice may be convicted on proof of the commission of the offense and of his compli-
city therein, though the person claimed to have committed the offense has not been prosecuted or con-
victed or has been convicted of a different offense or degree of offense…or has been acquitted” (Model
Penal Code § 2.06(7)).

Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted
Review the example in Section 1 with José and Abel. Assume that after José burglarizes, beats, and
rapes Maria, local police arrest José and Abel. The police transport José and Abel to the police station
and take them to separate rooms for interrogation. The police officer who interrogates José is a rookie
and forgets to read José his Miranda rights. Thereafter, the police contact Maria, but she refuses to co-
operate with the investigation because she fears reprisal from José. The district attorney decides not to
prosecute José because of the tainted interrogation. In this case, Abel could still be prosecuted for bat-
tery and possibly rape and burglary as an accomplice in some jurisdictions. Although José is the prin-
cipal and actually committed the crimes, it is not necessary for José to suffer the same criminal prosec-
ution and punishment as Abel. If the elements required for accomplice liability are present, Abel can be
fully responsible for the crimes committed by José, whether or not José is prosecuted for or convicted of
these offenses.

176 CRIMINAL LAW

Garrido Sentencing Video

Attorney: Nancy Garrido in Tears during Sentencing

Phillip Garrido, with his wife Nancy’s help, kidnapped Jaycee Dugard, an eleven-year-old girl, and held her cap-
tive for eighteen years. During that time, Dugard was repeatedly raped, became pregnant twice, and gave
birth to two children. Phillip Garrido pleaded guilty to multiple charges of rape and kidnapping and received a
sentence of four hundred years to life in prison. Nancy was prosecuted as an accomplice, pleaded guilty and
received a sentence of thirty-six years to life in prison.[14] Nancy Garrido’s attorney discusses her sentencing as
an accomplice in this video:

Ghailani Verdict Video

Ghailani Guilty of One Count

Ahmed Ghailani, an alleged terrorist, was transferred from a military prison in Guantanamo Bay and tried as a
civilian in a federal district court in New York. Ghailani was indicted for accomplice liability and conspiracy for
the deaths of hundreds of citizens killed during Al Qaeda bombings of US embassies in Nairobi, Kenya, and
Tanzania. At trial, the prosecution failed to convince the jury that Ghailani had the criminal intent required for
accomplice liability. He was acquitted of the murders and attempted murders as an accomplice and convicted
of one conspiracy charge. However, he received a sentence of life in prison without the possibility of parole for
the conspiracy charge, the same sentence he would have received if convicted of all the murder and attemp-
ted murder charges.[15] A news story on the conviction of Ghailani is shown in this video:

View the video online at: http://www.youtube.com/v/YfCFAmILBQo

View the video online at: http://www.youtube.com/v/ZUVRzJHA_tk

CHAPTER 7 PARTIES TO CRIME 177

K E Y T A K E A W A Y S

< The four parties to crime at early common law were principals in the first degree, principals in the second
degree, accessories before the fact, and accessories after the fact. These designations signified the
following:

< Principals in the first degree committed the crime.

< Principals in the second degree were present at the crime scene and assisted in the crime’s
commission.

< Accessories before the fact were not present at the crime scene, but assisted in preparing for the
crime’s commission.

< Accessories after the fact helped a party to the crime avoid detection and escape prosecution or
conviction.

< In modern times, the parties to crime are principals and their accomplices, and accessories.

< The criminal act element required for accomplice liability is aiding, abetting, or assisting in the commission
of a crime. In many jurisdictions, words are enough to constitute the accomplice criminal act element,
while mere presence at the scene without a legal duty to act is not enough.

< The criminal intent element required for accomplice liability is either specific intent or purposely or general
intent or knowingly.

< The natural and probable consequences doctrine holds an accomplice criminally responsible if the crime
the principal commits is foreseeable when the accomplice assists the principal.

< The consequences of accomplice liability are that the accomplice is criminally responsible for the crimes
the principal commits.

< In many jurisdictions, an accomplice can be prosecuted for an offense even if the principal is not
prosecuted or is tried and acquitted.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his
lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his
break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has
Penelope committed robbery? Why or why not?

2. Read State v. Ulvinen, 313 N.W.2d 425 (1981). In Ulvinen, the defendant sat guard and then helped her son
clean up and dispose of evidence after he strangled and dismembered his wife. Thereafter, the defendant
was convicted of murder as an accomplice. The defendant was asleep when the killing occurred, but
before the killing her son told her that he planned to kill the victim. The defendant reacted with passive
acquiescence by demurring and expressing disbelief that he would go through with his plans. Did the
Supreme Court of Minnesota uphold the defendant’s murder conviction? The case is available at this link:
http://scholar.google.com/
scholar_case?case=5558442148317816782&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Joubert v. State, 235 SW 3d 729 (2007). In Joubert, the defendant was convicted and sentenced to
death based on his participation in an armed robbery that resulted in the death of a police officer and
employee. The jury convicted the defendant after hearing testimony from his accomplice and reviewing a
video of the defendant confessing to the offense. The defendant appealed the conviction because in
Texas, accomplice testimony must be corroborated by other evidence, and the defendant claimed that
the other corroborating evidence was lacking in this case. Did the Court of Criminal Appeals of Texas
uphold the defendant’s conviction? Why or why not? The case is available at this link:
http://scholar.google.com/
scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

178 CRIMINAL LAW

vicarious liability

The transfer of a defendant’s
liability based upon a special
relationship.

corporate liability

The vicarious liability of a
corporation.

2. VICARIOUS LIABILITY

L E A R N I N G O B J E C T I V E S

1. Distinguish between accomplice liability and vicarious liability.
2. Distinguish between corporate criminal vicarious liability and individual criminal vicarious

liability.

Vicarious liability, a concept discussed in Chapter 4, also transfers liability from one defendant to
another. However, vicarious liability should not be confused with accomplice liability. Accomplice liab-
ility is based on the defendant’s participation in a criminal enterprise and complicity with the criminal
actor or principal, but vicarious liability transfers a defendant’s criminal responsibility for the crime to
a different defendant because of a special relationship. With vicarious liability, the acting defendant also
is criminally responsible for his or her conduct. Similar to the civil law concept of respondeat superior
discussed in Chapter 1, vicarious liability in criminal law is common between employers and employ-
ees. It is also the basis of corporate liability, which is discussed in Section 2.

2.1 Corporate Liability
At early common law, corporations were not criminally prosecutable as separate entities, which was
most likely because in England, corporations were owned and operated by the government. In modern
times, American corporations are private enterprises whose actions can seriously injure other individu-
als and the economy. Thus a corporation can be criminally responsible for conduct apart from its own-
ers, agents, or employees.[16] In general, this is a vicarious liability, transferring criminal responsibility
for an offense from an agent or employee of the corporation to the corporation itself, based on the em-
ployment relationship. Of course, the agent or employee also is responsible for the crime he or she
commits.

A corporation is vicariously liable only if an agent or employee commits a crime during the agent
or employee’s scope of employment.[17] As the Model Penal Code states, “[a] corporation may be con-
victed of the commission of an offense if…the conduct is performed by an agent of the corporation act-
ing in behalf of the corporation within the scope of his office or employment” (Model Penal Code
§ 2.07(1)(a)). The criminal punishment for a corporation is generally payment of a fine.

Example of Corporate Liability

Harry, an employee of Burger King Corporation, shreds corporate documents in his office when Bur-
ger King is sued civilly for sexual harassment in a multimillion-dollar class action suit. Under modern
theories of corporate liability, both Harry and Burger King could be criminally prosecuted for obstruc-
tion of justice. Note that Burger King’s liability is vicarious and depends on its relationship with Harry
as an employer and the fact that Harry is acting within the scope of employment. Vicarious liability is
distinguishable from accomplice liability, where the accomplice must be complicit with the criminal
actor. The owners of Burger King, who are the corporate shareholders, did not actively participate in
Harry’s conduct, although they will share in the punishment if the corporation is fined.

CHAPTER 7 PARTIES TO CRIME 179

F I G U R E 7 . 2 Vicarious and Corporate Liability

2.2 Individual Criminal Vicarious Liability
Generally speaking, criminal law disfavors criminal vicarious liability, the exception being corporate
liability discussed in Section 2. Criminal vicarious liability violates the basic precept that individuals
should be criminally accountable for their own conduct, not the conduct of others.[18] Although ac-
complice liability appears to hold an accomplice responsible for principals’ conduct, in reality the ac-
complice is committing a criminal act supported by criminal intent and is punished accordingly. In ad-
dition, other statutes that appear to impose criminal liability vicariously are actually holding individu-
als responsible for their own criminal conduct. Some examples are statutes holding parents criminally
responsible when their children commit crimes that involve weapons belonging to the parents, and
offenses criminalizing contributing to the delinquency of a minor. In both of these examples, the par-
ents are held accountable for their conduct, such as allowing children to access their guns or be truant
from school. The law is evolving in this area because the incidence of juveniles committing crimes is
becoming increasingly prevalent.

K E Y T A K E A W A Y S

< Accomplice liability holds an accomplice accountable when he or she is complicit with the principal;
vicarious liability imposes criminal responsibility on a defendant because of a special relationship with the
criminal actor.

< In many jurisdictions, corporations are vicariously liable for crimes committed by employees or agents
acting within the scope of employment. Individual criminal vicarious liability is frowned on, but the law in
this area is evolving as the incidence of juveniles committing crimes increases.

180 CRIMINAL LAW

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving home
from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why not?

2. Read People v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997). In Premier House, the defendant, a housing
cooperative that was incorporated, and members of the housing cooperative board of directors were
ordered to stand trial for violating a New York law requiring that window guards be installed on apartment
buildings. A child died after falling out of one of the windows. The members of the board of directors
appealed on the basis that their positions were merely honorary, and they had no personal involvement in
the crime. Did the Criminal Court of the City of New York uphold the order as to the members of the board
of directors? Why or why not? The case is available at this link: http://scholar.google.com/
scholar_case?case=6854365622778516089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Connecticut General Statute § 53a-8(b), which criminalizes the sale or provision of a firearm to
another for the purpose of committing a crime. The statute is available at this link: http://law.justia.com/
connecticut/codes/2005/title53a/sec53a-8.html. Does this statute create accomplice liability or
vicarious liability? Read the Connecticut Criminal Jury Instruction 3.1-4 for an explanation of the statute.
The jury instruction is available at this link: http://www.jud.ct.gov/ji/criminal/part3/3.1-4.htm.

L A W A N D E T H I C S : L I F E C A R E C E N T E R S O F A M E R I C A ,
I N C .

Is a Corporation Criminally Accountable When Its Employees Are Not?

Read Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010). The case is available at this link:
http://scholar.google.com/
scholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&oi=scholarr. In Life Care Centers, a res-
ident of the Life Care Center nursing home died in 2004 from injuries sustained when she fell down the front
stairs while attempting to leave the facility in her wheelchair. The resident could try to leave the facility be-
cause she was not wearing a prescribed security bracelet that both set off an alarm and temporarily locked
the front doors if a resident approached within a certain distance of those doors. The defendant, Life Care
Centers of America, Inc., a corporation that operates the nursing home, was indicted for involuntary man-
slaughter and criminal neglect.[19] The criminal intent element required for involuntary manslaughter and
criminal neglect in Massachusetts is reckless intent. The evidence indicated that the order requiring the vic-
tim to wear a security bracelet was negligently edited out of the victim’s treatment sheet, based on the actions
of more than one employee. The individual employee who left the victim near the stairs without the security
bracelet relied on the orders that did not indicate a need for the bracelet. There was no evidence that any indi-
vidual employee of Life Care Centers of America, Inc. was reckless. The prosecution introduced a theory of
“collective knowledge” of the actions or failure to act of the corporation’s employees. The prosecution’s
premise was that the several individual instances of negligent conduct combined to create reckless conduct
that could be imputed to the corporation vicariously. The Massachusetts Supreme Court unanimously held
that the corporation could not be held criminally responsible unless one individual employee could be held
criminally responsible.[20]

1. Do you think it is ethical to allow a corporation to escape criminal responsibility for reckless involuntary
manslaughter and criminal neglect when several employees’ negligent conduct caused the death, rather
than one employee’s reckless conduct? Why or why not?

Check your answer using the answer key at the end of the chapter.

CHAPTER 7 PARTIES TO CRIME 181

accessory

A defendant who helps a
principal escape or avoid
arrest, prosecution for, or
conviction of a crime.

3. ACCESSORY

L E A R N I N G O B J E C T I V E S

1. Distinguish between accomplice liability and the crime of accessory.
2. Define the criminal act element required for an accessory.
3. Define the criminal intent element required for an accessory.
4. Compare various approaches to grading the crime of accessory.

As stated in Section 1, at early common law, a defendant who helped plan the offense but was not
present at the scene when the principal committed the crime was an accessory before the fact. A de-
fendant who helped the principal avoid detection after the principal committed the crime was an ac-
cessory after the fact. In modern times, an accessory before the fact is an accomplice, and an accessory
after the fact is an accessory, which is a separate and distinct offense. Some states still call the crime of
accessory “accessory after the fact”[21] or “hindering prosecution.”[22]

The difference between an accomplice and an accessory is crucial. An accomplice is responsible for
the offense the principal commits. An accessory, on the other hand, is guilty of a separate crime that is
almost always a misdemeanor.

3.1 Accessory Act
The criminal act element required for an accessory in the majority of jurisdictions is aiding or assisting
a principal in escape, concealment, or evasion of arrest and prosecution or conviction after the princip-
al commits a felony.[23] In most states, a defendant cannot be an accessory to a misdemeanor, although
in some states a defendant can be an accessory to a high-level or gross misdemeanor.[24] In a minority
of states, the defendant can be an accessory to any crime.[25]

In many states, words are enough to constitute the accessory criminal act element.[26] Often special
categories of individuals are exempted from liability as an accessory, typically family members by blood
or marriage.[27]

Example of Accessory Act

Jim wakes up late at night to the sound of someone pounding on his door. He gets out of bed, walks
down the stairs, and opens the door. His father James is on the doorstep. James’s eyes are bloodshot
and he is swaying slightly on his feet. He tells Jim that he just got into a car accident and needs to come
inside before the police find out about it and begin an investigation. Jim steps aside and lets his father
enter the house. The smell of alcohol on his father’s breath is apparent. He thereafter allows his father
to spend the night without contacting the police about the accident.

Jim has probably committed the criminal act element required for an accessory in many jurisdic-
tions. Jim allowed his father to escape arrest and evade an alcohol screening after leaving the scene of a
car accident, which is most likely felony drunk driving and hit and run. He also sheltered his father for
the night, concealing him from law enforcement. If Jim is in a state that exempts family members from
accessory liability, he may not be subject to prosecution because the principal to the crime(s) is his
father. If Jim is not in a state that relieves family members from accessory liability, he could be fully
prosecuted for and convicted of this offense.

182 CRIMINAL LAW

F I G U R E 7 . 3 Crack the Code

3.2 Accessory Intent
The criminal intent element required for an accessory has two parts. First, the defendant must act with
general intent or knowingly or awareness that the principal committed a crime. Second, the defendant
must help or assist the principal escape or evade arrest or prosecution for and conviction of the offense
with specific intent or purposely.[28]

Example of Accessory Intent

Review the example with Jim and James given in Section 3. In this case, Jim is aware that James com-
mitted a crime because James told Jim he got into an accident and James’s intoxicated condition was
apparent. Nonetheless, Jim purposely helped James evade arrest and an alcohol screening by sheltering
him in his home while the effects of the alcohol dissipated. Thus Jim probably has the criminal intent
required for liability as an accessory in most jurisdictions. If Jim is not in a state that exempts family
members from accessory liability, he could be fully subject to prosecution for and conviction of this
offense.

CHAPTER 7 PARTIES TO CRIME 183

3.3 Accessory Grading
As stated in Section 3, in many jurisdictions accessory is an offense that is graded less severely than the
crime committed by the principal. Accessory is typically graded as a misdemeanor,[29] although in
some jurisdictions it is graded as a felony.[30]

T A B L E 7 . 1 Comparison of Accomplice, Accessory, and Vicarious Liability

Type of
Liability

Criminal Act Criminal Intent

Accomplice Aid, assist commission of a crime Specific or purposely, or general or knowingly,
depending on the jurisdiction

Accessory Aid, assist evasion of prosecution or
conviction for a felony, high-level
misdemeanor, or any crime

General or knowingly (crime committed) plus
specific or purposely (principal evades prosecution
or conviction)

Vicarious Committed by an individual in a special
relationship with the defendant

Belongs to an individual in a special relationship
with the defendant

F I G U R E 7 . 4 Diagram of Parties to Crime

K E Y T A K E A W A Y S

< Accomplice liability holds a complicit defendant accountable for the crime the principal commits;
accessory is a separate crime that is typically a misdemeanor.

< The criminal act element required for an accessory is aiding or assisting the principal escape or evade
arrest, prosecution for, or conviction of a felony, high-level misdemeanor, or any crime, depending on the
jurisdiction. In many jurisdictions words are enough to constitute the accessory criminal act element.

< The criminal intent element required for an accessory has two parts. The defendant must act

< with general intent or knowingly that the principal committed the crime,

< with specific intent or purposely to help the principal escape or evade arrest, prosecution for, or
conviction of the offense.

< In many jurisdictions, the crime of accessory is graded lower than the crime the principal committed;
typically, it is graded as a misdemeanor, although in some jurisdictions, it is graded as a felony.

184 CRIMINAL LAW

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Cory watches as her sister Amanda breaks into a parking meter across the street and starts scooping
change into her purse. Amanda thereafter runs into a nearby alley and hides behind a dumpster. A police
officer arrives on the scene and asks Cory if she witnessed the crime. Cory responds, “No, I didn’t notice
anything.” The police officer does a search, does not find Amanda, and leaves. Has Cory committed a
crime? If your answer is yes, which crime has Cory committed, and does Cory have a possible defense?

2. Read U.S. v. Hill, 268 F.3d 1140 (2001). In Hill, the defendant was convicted of harboring a fugitive and
being an accessory when she helped her husband escape the country to avoid prosecution for a failure to
pay child support. The defendant claimed that her convictions were unconstitutional because they
contravened her right to privacy, association, marriage, and due process. Did the US Court of Appeals for
the Ninth Circuit uphold the defendant’s convictions? The case is available at this link:
http://caselaw.findlaw.com/us-9th-circuit/1215479.html.

3. Read State v. Truesdell, 620 P.2d 427 (1980). In Truesdell, the prosecution appealed the dismissal of the
defendant’s case that was a prosecution for accessory to her twelve-year-old son’s felony shooting of her
ex-husband. The lower court held that the defendant could not be an accessory to a felony because her
son was not an adult who could be charged with a felony. Did the Oklahoma Court of Criminal Appeals
reverse the lower court and permit the defendant to be tried as an accessory? Why or why not? The case is
available at this link: http://scholar.google.com/scholar_case?case=14038267185437754114&q=
State+v.+Truesdell+620+P.2d+427+%281980%29&hl=en&as_sdt=2,5.

4. END-OF-CHAPTER MATERIAL

Summary

Often more than one criminal defendant participates in the commission of a crime. Defendants working to-
gether with a common criminal purpose are acting with complicity and are responsible for the same crimes,
to the same degree.

At early common law, there were four parties to a crime. A principal in the first degree actually committed the
crime. A principal in the second degree was present at the crime scene and assisted in the crime’s commis-
sion. An accessory before the fact was not present at the crime scene but helped prepare for the crime’s com-
mission. An accessory after the fact helped a party after he or she committed a crime by providing aid in es-
caping or avoiding arrest and prosecution or conviction. In modern times, there are only two parties to a
crime: a principal, who is in the same category with his or her accomplice(s), and accessory(ies). Principals ac-
tually commit the crime, and they and their accomplices are criminally responsible for it. Accessories play the
same role as accessories after the fact at common law.

The criminal act element required to be an accomplice in most jurisdictions is assistance in the commission of
a crime. Words are enough to constitute the accomplice criminal act. Mere presence at the scene, even pres-
ence at the scene combined with flight after the crime’s commission, is not enough to constitute the accom-
plice criminal act unless there is a legal duty to act.

The criminal intent element required for accomplice liability in many jurisdictions is specific intent or pur-
posely to commit the crime at issue. In some states, general intent or knowingly that the principal will commit
the crime creates an inference of intent if the offense is serious. In a minority of jurisdictions, general intent or
knowingly that the principal will commit the crime is sufficient.

The natural and probable consequences doctrine holds accomplices criminally responsible for all crimes the
principal commits that are reasonably foreseeable. In many jurisdictions an accomplice can be prosecuted for
a crime the principal commits even if the principal is not prosecuted or acquitted.

Vicarious liability transfers criminal responsibility from one party to another because of a special relationship.
Vicarious liability is common between employers and employees and is the basis for corporate criminal liabil-
ity. Pursuant to modern corporate criminal liability, a corporation can be fined for a crime(s) a corporate agent
or employee commits during the scope of employment. The corporate agent or employee also is criminally re-
sponsible for his or her conduct. In general, the law disfavors individual criminal vicarious liability. The law in
this area is evolving as the incidence of juveniles committing crimes increases.

CHAPTER 7 PARTIES TO CRIME 185

In modern times, an accessory is the equivalent of an accessory after the fact at common law. The criminal act
element required for an accessory is providing assistance to a principal in escape, avoiding detection, or arrest
and prosecution, or conviction for the commission of a felony, high-level misdemeanor, or any crime, depend-
ing on the jurisdiction. Words are enough to constitute the accessory criminal act. Several jurisdictions exempt
family members from criminal responsibility for acting as an accessory.

The criminal intent element required for an accessory in most jurisdictions is general intent or knowingly that
the principal committed a crime, and specific intent or purposely that the principal escape, avoid detection, or
arrest and prosecution, or conviction for the offense. Accessory is a separate crime that is usually graded as a
misdemeanor, although some jurisdictions grade accessory as a felony.

Y O U B E T H E L A W P R O F E S S O R

You are a law professor searching for cases to illustrate certain legal concepts for your students. Read the
prompt, review the case, and then decide which legal concept it represents. Check your answers using the
answer key at the end of the chapter.

1. The defendant’s vehicle matched the description of a vehicle seen in the vicinity of a burglary before the
burglary, during the burglary, and after the burglary. The defendant claimed that the evidence was
insufficient to prove he was an accomplice to the burglary. Does this case illustrate the legal concept of
accomplice act, accomplice intent, or both? Read Collins v. State, 438 So. 2d 1036 (1983). The case is
available at this link: http://scholar.google.com/
scholar_case?case=8573128029213310764&hl=en&as_sdt=2,5&as_vis=1.

2. The defendants, foster parents, were found guilty as accomplices to the felony murder of their two-year-
old foster daughter. Although both defendants testified that the victim died from injuries experienced
after a fall from a swing, medical experts reported that the victim’s injuries were inconsistent with that
testimony and appeared to be the result of child abuse. The jury convicted the defendants as accomplices
to felony murder after a jury instruction stating that an omission to act could constitute the criminal act
element for accomplice liability when there is a duty to act, and parents have a legal duty to come to the
aid of their children. Does this case illustrate the legal concept of omission to act, statutory
interpretation, or both? Read State v. Jackson, 137 Wn. 2d 712 (1999). The case is available at this link:
http://caselaw.findlaw.com/wa-supreme-court/1412039.html.

3. The defendant, an electrical contracting company, was found guilty of violating OSHA regulations that led
to an employee’s death. The victim, an apprentice in training, touched a live electrical wire and died from
electrocution. The OSHA statute in question required “willful” conduct on behalf of the company. The jury
instruction on willful stated that a company acted willfully or knowingly if individual employees of that
company acted knowingly. The evidence indicated that some employees knew or were aware of live
wiring in the vicinity of the accident. The defendant appealed and claimed that the jury instruction should
have stated that a company acted willfully or knowingly if individual employees acted knowingly and had
a duty to report that knowledge to the company. Does this case illustrate the legal concept of criminal
intent, vicarious liability, or both? Read U.S. v. L.E. Meyers Co., 562 F.3d 845 (2009). The case is available at
this link: http://scholar.google.com/
scholar_case?case=2854285863509787279&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

4. The defendant was convicted of both first-degree murder and accessory after the fact to that murder. The
trial court did not instruct the jury that the offenses were mutually exclusive and that they could only
convict the defendant of one or the other. The defendant appealed on the basis that he was entitled to a
jury instruction that prevented a conviction on both murder and accessory after the fact to murder. Does
this case illustrate the legal concept of the criminal elements required for accessory after the fact, the
criminal elements required for murder, or both? Read State v. Melvin, No. 382PA09 (North Carolina
2010). The case is available at this link: http://caselaw.findlaw.com/nc-supreme-court/1549865.html.

Cases of Interest

< State v. Merida-Medina, 191 P.3d 708 (2008), discusses accomplice liability: http://scholar.google.com/
scholar_case?case=9533921177591527482&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

< State v. Guminga, 395 N.W.2d 344 (1986), discusses vicarious liability and due process:
http://scholar.google.com/
scholar_case?case=9718401866480992202&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

< Staten v. State, 519 So. 2d 622 (1988), discusses principal and accessory criminal responsibility:
http://scholar.google.com/
scholar_case?case=5691885691013540689&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

186 CRIMINAL LAW

Articles of Interest

< Spectator liability in gang rape: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664162

< Corporate criminal liability: http://www.pointoflaw.com/feature/archives/2009/07/corporate-criminal
-liability-s.php

< Criminal vicarious liability in general: http://www.experiencefestival.com/a/Vicarious_liability
_criminal/id/1994611

Website of Interest

< White collar crime blog site: http://lawprofessors.typepad.com/whitecollarcrime_blog/2009/12/
recent-articles.html

Statistics of Interest

< FBI statistics on pending corporate and securities fraud cases: http://www.fbi.gov/stats-services/
publications/financial-crimes-report-2009/financial-crimes-report-2009#corporate

Answers to Exercises

From Section 1

1. Penelope could be charged with and convicted of robbery as an accomplice in many jurisdictions.
Penelope assisted Justin by telling him what time the security guard took his break. Although
Penelope was not present at the scene, if the trier of fact determines that Penelope had the proper
criminal intent required for accomplice liability (specific intent or purposely or general intent or
knowingly, depending on the jurisdiction) then Penelope can be held accountable for this crime.
Note that Penelope assisted Justin with words and that words are enough to constitute the criminal
act element required for accomplice liability.

2. The Supreme Court of Minnesota reversed the defendant’s murder conviction, holding that the
Minnesota Accomplice Liability Statute required more than passive acquiescence as a criminal act
element. The court held that evidence of conduct occurring after the crime could raise an inference
of participation before or during the crime’s commission, but in this case, the evidence was
insufficient to uphold the verdict.

3. The Court of Criminal Appeals of Texas upheld the defendant’s conviction because the video of the
defendant’s confession corroborated the accomplice’s testimony. The court specifically held that
corroborating evidence does not have to be enough to prove beyond a reasonable doubt that the
defendant committed the crime; it only has to “tend to connect him to the offense.”[31]

Answers to Exercises

From Section 2

1. ABC Corporation probably is not vicariously liable for criminal homicide because Brad’s reckless
conduct did not occur during the scope of employment; the criminal homicide occurred as Brad was
driving home. However, if Brad were required to work while driving home (by making work-related
phone calls, for example), vicarious liability could be present in this instance.

2. The Criminal Court of the City of New York upheld the order to stand trial, holding that the
prosecution was within its rights to charge the members of the board of directors under the statute.
The court stated that whether the board of directors could be held vicariously liable was a question
of fact to be determined by the judge or jury at trial.

3. The jury instruction explains that the statute criminalizes vicarious liability, not accomplice
liability. The defendant could also be charged as a principal or accessory under section (a) of the
statute.

CHAPTER 7 PARTIES TO CRIME 187

Answers to Exercises

From Section 3

1. Cory has probably committed the crime of accessory in most jurisdictions. Cory’s response to the
police officer’s question was false, and it appears to be made with the intent to help Amanda escape
detection. Note that Cory renders assistance using words, but words are enough to constitute the
criminal act element required for accessory. Cory is not an accomplice to Amanda’s crime because
she did not act to assist Amanda with the parking meter destruction and theft; she only acted after
the crime was committed. Her failure to report the crime is probably not an “omission to act” because
it is extremely unlikely that a statute exists requiring individuals to report theft committed in their
presence, creating a legal duty to act. A potential defense to accessory would be the family
relationship, which creates an exemption to accessory in some jurisdictions.

2. The US Court of Appeals for the Ninth Circuit upheld the defendant’s conviction for harboring a
fugitive because the statute at issue was justified by the compelling government interest in
apprehending deadbeat parents. The court reversed the accessory conviction on separate grounds
(an improperly drafted indictment).

3. The Oklahoma Court of Criminal Appeals reversed the lower court and allowed the defendant to be
prosecuted for accessory. The court held that it is not necessary for the principal to be charged with
or convicted of a felony to prosecute another for accessory to that felony, so the child’s age or
prosecutability is irrelevant.

Answer to Law and Ethics Question

1. Insisting that at least one individual employee of the corporation commit a crime with the requisite
intent before imposing vicarious liability upon the corporation is ethical, and it promotes justice.
Aggregating intent could have far-reaching consequences outside the arena of vicarious corporate
liability. For example, it could create unfair and overly harsh sentencing if extended to accomplice
liability. When accomplices work together, at least one accomplice must possess the intent for the
crime to hold other accomplices responsible. Imagine the possibilities if the accomplices’ intent
could be aggregated and raised to a more sinister level. Accomplices working together to commit a
misdemeanor could be prosecuted for a serious and unforeseeable felony if their intents could be
combined and elevated. Vicarious corporate liability is already a legal fiction because it transfers
criminal responsibility for conduct from an individual to a business entity. This transfer of liability
punishes the owners of the corporation for crimes they did not commit. If prosecutors could stretch
the fiction further by combining the intents of various corporate employees and elevating them, this
would not comport with notions of fairness.

Answers to You Be the Law Professor

1. In this case, the District Court of Appeal of Florida held that the evidence was insufficient to support
either the criminal act element or the criminal intent element required to be an accomplice. First, the
court held that the identification of the vehicle proved “mere presence at the scene,” which is not
sufficient to constitute the accomplice criminal act. The court thereafter held that an inference of
intent to commit burglary was inappropriate when the prosecution did not prove the criminal act
that was the basis of the inference. Thus you can use this case to illustrate the legal concepts of
accomplice criminal act and intent.

2. In this case, the Supreme Court of Washington reviewed the accomplice liability statute and noted
that it did not include omission to act. The statute was predicated on the Model Penal Code
§ 2.06(3)(a)(iii), which expressly includes omission to act as sufficient for accomplice liability when
there is a legal duty to act, so the court held that the Washington State Legislature’s rejection of
omission to act in the accomplice liability statute was deliberate. The court reversed the felony
murder convictions because the jury instruction did not comport with the statute (RCW 9A.08.020 (3))
as they interpreted it. The court also expressly stated that in Washington, omission to act cannot
create accomplice liability. Thus you can use this case to illustrate the legal concepts of statutory
interpretation and omission to act.

188 CRIMINAL LAW

3. The US Court of Appeals for the Seventh Circuit held that the jury instruction should include the
individual employee’s duty to report knowledge or awareness of dangerous conditions when
defining “willful” conduct under the OSHA statute. The court held that an individual employee’s
knowledge or awareness could not be imputed to the company unless the individual employee had
a duty to report that knowledge. The court’s holding focused on when a court should impute criminal
intent to an employer or company and the definition of criminal intent under the statute. Thus you
can use this case to illustrate the legal concepts of vicarious liability and criminal intent.

4. The North Carolina Supreme Court discussed the elements of first-degree murder, aiding and
abetting first-degree murder, and accessory after the fact to murder. The court reached the
conclusion that first-degree murder and accessory after the fact to that murder are mutually
exclusive, based on the criminal elements required for each offense. Thus you can use this case to
illustrate the legal concepts of the elements of first-degree murder and the elements of
accessory after the fact.

CHAPTER 7 PARTIES TO CRIME 189

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

ENDNOTES

Cal. Penal Code § 31, accessed December 20, 2010,http://law.onecle.com/california/
penal/31.html.

Idaho Code Ann. § 18-205, accessed December 20, 2010,
http://www.legislature.idaho.gov/idstat/Title18/T18CH2SECT18-205.htm.

18 U.S.C. § 2, accessed December 20, 2010, http://codes.lp.findlaw.com/uscode/18/I/
1/2.

K.S.A. § 21-3205, accessed December 20, 2010, http://kansasstatutes.lesterama.org/
Chapter_21/Article_32/#21-3205.

N.Y. Penal Law § 20.00, accessed December 26, 2010, http://law.onecle.com/
new-york/penal/PEN020.00_20.00.html.

Commonwealth v. Hargrave, 745 A.2d 20 (2000), accessed December 20, 2010,
http://scholar.google.com/
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http://caselaw.findlaw.com/ca-court-of-appeal/1308666.html.

Or. Rev. Stat. § 161.155, accessed December 20, 2010, https://www.oregonlaws.org/
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People v. Lauria, 251 Cal. App. 2d 471 (1967), accessed December 21, 2010,
http://scholar.google.com/
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http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.08.020.

ME Rev. Stat. Ann. tit. 17-A § 57 (3) (A), accessed December 21, 2010,
http://www.mainelegislature.org/legis/statutes/17-a/title17-Asec57.html.

Bogdanov v. People, 941 P.2d 247, 251 n. 8 (1997), accessed December 21, 2010,
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Benjamin Weiser, “Ex-Detainee Gets Life Sentence in Embassy Blasts,” New York Times
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26ghailani.html.

New York Central R. Co. v. U.S., 212 U.S. 481 (1909), accessed December 21, 2010,
http://supreme.justia.com/us/212/481.

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Martindale.com website, accessed January 24, 2011, http://www.martindale.com/
corporate-law/article_Mintz-Levin-Cohn-Ferris-Glovsky-Popeo-PC_1047124.htm.

Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010), accessed
January 24, 2011, http://scholar.google.com/
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Mass. Gen. Laws ch. 274 § 4, accessed January 16, 2011, http://law.onecle.com/
massachusetts/274/4.html.

Haw. Rev. Stat. § 710-1030, accessed January 26, 2011, http://law.justia.com/codes/
hawaii/2009/volume-14/title-37/chapter-710/hrs-0710-1030-htm/.

Va. Code Ann. § 18.2-19, accessed December 26, 2010, http://law.onecle.com/
virginia/crimes-and-offenses-generally/18.2-19.html.

N.R.S. § 195.030, accessed December 26, 2010, http://law.onecle.com/nevada/
crimes/195.030.html.

Haw. Rev. Stat. § 710-1030, accessed October 10, 2011,
http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0710/
HRS_0710-1030.htm.

Minn. Stat. Ann. § 609.495, accessed December 23, 2010,
https://www.revisor.mn.gov/statutes/?id=609.495&year=2010.

Vt. Stat. Ann. tit. 13 § 5, accessed December 23, 2010, http://www.leg.state.vt.us/
statutes/fullchapter.cfm?Title=13&Chapter=001.

Mass. Gen. Laws ch. 274 § 4, accessed December 26, 2010, http://law.onecle.com/
massachusetts/274/4.html.

Haw. Rev. Stat. § 710-1030, accessed January 9, 2011, http://law.justia.com/codes/
hawaii/2009/volume-14/title-37/chapter-710/hrs-0710-1030-htm/.

Idaho Code Ann. § 18-206, accessed January 9, 2011,
http://www.legislature.idaho.gov/idstat/Title18/T18CH2SECT18-206.htm.

Joubert v. State, 235 SW3d 729, 731 (2007), accessed January 22, 2011,
http://scholar.google.com/
scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

190 CRIMINAL LAW

Source: Image courtesy of Tara Storm.

insanity defense

A defense that excuses a
legally insane defendant’s
criminal conduct.

C H A P T E R 6
Criminal Defenses, Part 2
The use of drugs or controlled substances, dependence on drugs or controlled substances or

voluntary intoxication shall not, as such, constitute a defense to a criminal charge…

– Or. Rev. Stat. § 161.125(1), cited in Section 2

1. THE INSANITY DEFENSE

L E A R N I N G O B J E C T I V E S

1. Identify four states that do not recognize an insanity defense.
2. Identify four versions of the insanity defense.
3. Ascertain the two elements required for the M’Naghten insanity defense.
4. Ascertain the two elements required for the irresistible impulse insanity defense.
5. Compare the M’Naghten, irresistible impulse, and substantial capacity tests.
6. Ascertain the basis of the Durham insanity defense.
7. Identify the various burdens of proof for the insanity defense.
8. Distinguish between diminished capacity and the insanity defense.
9. Compare the insanity defense with mental competence to stand trial.

10. Compare the insanity defense with the guilty but mentally ill verdict.
11. Compare different commitment procedures for an insane criminal defendant.
12. Distinguish temporary from permanent insanity.

With the exception of alibi and the expiration of the statute of limitations, Chapter 5 explored criminal
defenses based on justification. This chapter reviews criminal defenses based on excuse, including the
insanity defense. Remember that defenses based on excuse focus on the defendant and claim that the
defendant should be excused from criminal responsibility for his or her conduct under the
circumstances.

Although controversial, most states and the federal government recognize an insanity defense.[1]
Montana, Utah, Kansas, and Idaho are the only states that do not.[2] The insanity defense is the subject
of much debate because it excuses even the most evil and abhorrent conduct, and in many jurisdic-
tions, legal insanity functions as a perfect defense resulting in acquittal. However, the insanity defense
is rarely used and hardly ever successful. This is generally because of the difficulty in proving legal
insanity.

Many criminal defendants suffer from mental illness and can produce evidence of this illness such
as psychiatric or layperson testimony. Often, mental disturbance is apparent from the defendant’s con-
duct under the circumstances. However, legal insanity differs from medical insanity and is generally
much more difficult to establish. The rationale behind creating a different standard for legal insanity is
the goal of a criminal prosecution discussed in Chapter 1. Criminal prosecution should deter as well as
incapacitate. While the purpose of a medical diagnosis is to eventually cure the defendant’s disorder,
the purpose of criminal law is to punish the defendant. Thus the defendant’s conduct is not excused if
the defendant or society can benefit from punishment.

The policy supporting the insanity defense is twofold. First, an insane defendant does not have
control over his or her conduct. This is similar to a defendant who is hypnotized, or sleepwalking. Se-
cond, an insane defendant does not have the ability to form criminal intent. Without the ability to con-
trol conduct, or the understanding that conduct is evil or wrong by society’s standards, an insane de-
fendant presumably will commit crimes again and again. Thus no deterrent effect is served by punish-
ment, and treatment for the mental defect is the appropriate remedy.

Four variations of the insanity defense currently exist: M’Naghten, irresistible impulse, substantial
capacity, and Durham.

M’Naghten insanity
defense

An insanity defense that
excuses criminal conduct
when a mental defect or
disease caused the defendant
not to know the nature or
quality of the criminal act, or
that the act was wrong. Also
called the right-wrong test.

deific defense

The defendant claims God
commanded him or her to
commit the crime.

1.1 M’Naghten Insanity Defense
The M’Naghten insanity defense, also called the right-wrong test, is the most common insanity de-
fense in the United States. It is also the oldest and was created in England in 1843. The defense is
named after Daniel M’Naghten. M’Naghten was under the paranoid delusion that the Prime Minister
of England, Sir Robert Peel, was trying to kill him. When he tried to shoot Sir Peel from behind, he in-
advertently shot Sir Peel’s Secretary, Edward Drummond, who thereafter died. M’Naghten was put on
trial for murder and, to the shock of the nation, the jury found him not guilty by reason of insanity.[3]
After a public outcry at this verdict, the British House of Lords developed a test for insanity that re-
mains relatively intact today.

The M’Naghten insanity defense is cognitive and focuses on the defendant’s awareness, rather than
the ability to control conduct. The defense requires two elements. First, the defendant must be suffering
from a mental defect at the time he or she commits the criminal act. The mental defect can be called a
“defect of reason” or a “disease of the mind,” depending on the jurisdiction.[4] Second, the trier of fact
must find that because of the mental defect, the defendant did not know either the nature and quality
of the criminal act or that the act was wrong.

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in
general, the defendant must be cognitively impaired to the level of not knowing the nature and quality
of the criminal act, or that the act is wrong. Some common examples of mental defects and diseases are
psychosis, schizophrenia, and paranoia.

Jurisdictions vary as to the level of awareness the defendant must possess. Some jurisdictions use
the term “know,” or “understand,”[5] while others use the term “appreciate.”[6] If know or understand is
the standard, the trier of fact must ascertain a basic level of awareness under the attendant circum-
stances. If appreciate is the standard, the trier of fact must analyze the defendant’s emotional state, and
evidence of the defendant’s character or personality may be relevant and admissible.

A defendant does not know the nature and quality of a criminal act if the defendant is completely
oblivious to what he or she is doing. This is quite rare, so most defendants claiming insanity choose to
assert that they did not know their act was wrong. However, jurisdictions differ as to the meaning of
“wrong.” Some jurisdictions define wrong as “legally wrong,” meaning the defendant must be unaware
that the act is against the law.[7] Others define wrong as “legally and morally wrong,” meaning the de-
fendant must also be unaware that the act is condemned by society.[8] Generally, the only instance
where the defendant must be “morally wrong,” standing alone, is when the defendant claims that the
conduct was performed at the command of God, which is called the deific defense.[9] Whether the
standard is legally wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide
or escape, it is apparent that the defendant knew the difference between right and wrong, defeating the
claim of insanity under M’Naghten.

Example of a Case Inappropriate for the M’Naghten Insanity Defense

Susan wants to marry a single man, but he does not want the responsibility of caring for her children.
Susan decides to kill her children. She drives her two sons, aged three and five, out to the lake. She puts
the car in park, gets out, and then puts it in gear, watching as it drives into the water. Both of her sons
drown. Later that day, Susan files a police report stating that a stranger kidnapped her children at gun-
point. While searching the area for the kidnapper, the police discover the children’s bodies and evid-
ence indicating that Susan killed them.

Susan recants her kidnapping story and admits she killed her children. However, she claims she is
not guilty by reason of insanity. Susan’s claim will probably not be successful if she killed her children
in a jurisdiction that recognizes the M’Naghten insanity defense. Susan tried to mislead the police,
demonstrating her awareness that she had done something wrong. Thus although Susan’s behavior ap-
pears mentally imbalanced, she clearly knew the difference between right and wrong, and her conduct is
not excusable under M’Naghten’s rigid requirements.

Example of a Case Appropriate for the M’Naghten Insanity Defense

Andrea, a diagnosed schizophrenic, drowns five of her young children in the bathtub. Andrea
promptly phones 911 and tells the operator that her children are dead. The operator dispatches an
emergency call to law enforcement. When law enforcement officers arrive at Andrea’s house, she in-
forms them that she killed her children so that they could leave this earth and enter heaven.

Andrea thereafter claims she is not guilty for killing her children by reason of insanity. Andrea
could be successful if the jurisdiction in which she killed her children recognizes the M’Naghten insan-
ity defense. Andrea suffers from a mental defect, schizophrenia. In addition, there is no evidence indic-
ating Andrea knew her conduct was wrong, such as an attempted escape, or cover-up. In fact, Andrea
herself contacted law enforcement and immediately told them about her criminal acts. Thus both of the

146 CRIMINAL LAW

irresistible impulse defense

An insanity defense that
excuses criminal conduct
when a mental defect or
disease caused the defendant
to lose the ability to control
his or her conduct or
conform his or her conduct
to the law.

M’Naghten elements appear to be present, and Andrea’s conduct may be excusable under the
circumstances.

F I G U R E 6 . 1 M’Naghten Insanity Defense

1.2 Irresistible Impulse Insanity Defense
Another variation of the insanity defense is the irresistible impulse defense. This defense has lost
popularity over the years and is rejected by most of the states and the federal government.[10] In some
cases, the irresistible impulse insanity defense is easier to prove than the M’Naghten insanity defense,
resulting in the acquittal of more mentally disturbed defendants.

The irresistible impulse insanity defense generally supplements M’Naghten, so the focus is on the
defendant’s awareness (cognitive) and the defendant’s will (ability to control conduct). In jurisdictions
that recognize the irresistible impulse insanity defense, the first element is the same as M’Naghten; the
defendant must suffer from a mental defect or disease of the mind. However, the second element adds
the concept of volition, or free choice. If the defendant cannot control his or her conduct because of
the mental defect or disease, the defendant’s conduct is excused even if the defendant understands that
the conduct is wrong.[11] This is a softer stance than M’Naghten, which does not exonerate a defendant
who is aware conduct is wrong. The challenge for the trier of fact in an irresistible impulse jurisdiction
is distinguishing between conduct that can be controlled and conduct that cannot.

Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense

Jolene, who has been diagnosed with paranoia, decides she must cut off all her sorority sisters’ hair be-
cause they are “out to get her.” She drives to the sorority house with a Taser and scissors in her back-
pack. Her plan is to subdue each sister with the stun gun and then hack off her hair. As she arrives at
the house, she sees Agnes, one of her sorority sisters, trip and fall in the parking lot, ripping her
cashmere sweater and scraping her chin. Feeling a stab of pity, Jolene ignores Agnes and walks hur-
riedly toward the building. As she enters, Ashley, another sorority sister, turns, scowls at Jolene, and
barks, “What in the world are you wearing? You look like you just rolled out of bed!” Jolene pulls the
stun gun out of her backpack and shoots Ashley. While Ashley is lying on the floor, Jolene takes out the
scissors and cuts Ashley’s hair off at the scalp.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 147

substantial capacity test

An insanity defense that
excuses criminal conduct
when a mental disease or
defect caused the defendant
to lose the substantial
capacity to appreciate the
criminality of conduct, or to
control conduct or conform
conduct to the law. Also
called the Model Penal Code
or ALI insanity defense.

Jolene claims she is not guilty for assault and battery of Ashley by reason of insanity. If Jolene at-
tacked Ashley in a jurisdiction that recognizes the irresistible impulse insanity defense, she probably
will not be successful with her claim. Jolene has been diagnosed with paranoia, which is a mental defect
or disease. However, Jolene seems aware that shooting someone with a stun gun and cutting off her
hair is wrong because she spared Agnes based on pity. In addition, Jolene’s choice not to attack Agnes
indicates she has control over her conduct. Thus Jolene is cognitive of the difference between right and
wrong and has the will to suppress criminal behavior, defeating any claim of insanity under the irresist-
ible impulse insanity defense.

F I G U R E 6 . 2 Irresistible Impulse Insanity Defense

1.3 The Substantial Capacity Test
The substantial capacity test is the insanity defense created by the Model Penal Code. The Model
Penal Code was completed in 1962. By 1980, approximately half of the states and the federal govern-
ment adopted the substantial capacity test (also called the Model Penal Code or ALI defense).[12]
However, in 1982, John Hinckley successfully claimed insanity using the substantial capacity test in his
federal trial for the attempted murder of then-President Ronald Reagan. Public indignation at this not-
guilty verdict caused many states and the federal government to switch from the substantial capacity
test to the more inflexible M’Naghten standard.[13] In addition, jurisdictions that switched to
M’Naghten also shifted the burden of proving insanity to the defendant.[14] The defendant’s burden of
proof for the insanity defense is discussed shortly.

The substantial capacity test is as follows: “A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements
of law” (Model Penal Code § 4.01(1)). The defense has two elements. The first element requires the de-
fendant to have a mental disease or defect, like the M’Naghten and irresistible impulse insanity de-
fenses. The second element combines the cognitive standard with volitional, like the irresistible im-
pulse insanity defense supplementing the M’Naghten insanity defense.

In general, it is easier to establish insanity under the substantial capacity test because both the cog-
nitive and volitional requirements are scaled down to more flexible standards. Unlike the M’Naghten

148 CRIMINAL LAW

insanity defense, the substantial capacity test relaxes the requirement for complete inability to under-
stand or know the difference between right and wrong. Instead, the defendant must lack substantial,
not total, capacity. The “wrong” in the substantial capacity test is “criminality,” which is a legal rather
than moral wrong. In addition, unlike the irresistible impulse insanity defense, the defendant must lack
substantial, not total, ability to conform conduct to the requirements of the law. Another difference in
the substantial capacity test is the use of the word “appreciate” rather than “know.” As stated previ-
ously, appreciate incorporates an emotional quality, which means that evidence of the defendant’s
character or personality is relevant and most likely admissible to support the defense.

Example of the Substantial Capacity Test

Loreen has been diagnosed with psychosis and spent most of her life in a mental hospital. While at the
mental hospital, Loreen made friends with many of the patients and health-care personnel. From time
to time, Loreen would play jokes on these friends. Most of these “jokes” consisted of putting her antide-
pressants into their food. Loreen was always reprimanded and often sternly punished for these es-
capades. After her release from the mental hospital at age twenty-one, Loreen falls in love with Aidan, a
man who works in a bookstore near her apartment. Loreen decides to make Aidan fall in love with her
by feeding him a magic potion, which she concocts out of a mixture of her antidepressants. Loreen
buys a book from Aidan and casually asks if he would like her to buy him a coffee. Aidan shrugs and
says, “Sure, but I don’t have a break for another two hours.” Loreen offers to bring him the coffee. Be-
fore bringing the drink to Aidan, she puts her “magic potion” in it. While Aidan is sipping the coffee,
Loreen declares her love for him. She then states, “I know I shouldn’t have, but I put a love potion in
your coffee. I hope it doesn’t hurt you.” Aidan becomes seriously ill after drinking the coffee and is
hospitalized.

Loreen claims she is not guilty for battering Aidan by reason of insanity. If Loreen is in a jurisdic-
tion that recognizes the substantial capacity test, she may be successful with her claim. Loreen has a
mental disease or defect, psychosis. Loreen’s statement to Aidan indicates that she lacks the substantial
capacity to appreciate the criminality of her conduct. Note that if Loreen were in a M’Naghten jurisdic-
tion, her statement “I know I shouldn’t have” could prove her awareness that her conduct was wrong,
defeating her claim. In addition, Loreen’s behavior at the mental hospital indicates that she lacks the
substantial capacity to conform or control her conduct. Even after a lifetime of being punished over
and over for mixing her meds together and putting them in other people’s food or drink, Loreen still
does it. Lastly, in a substantial capacity jurisdiction, testimony from Loreen’s friends at the mental hos-
pital may be admissible to support her claim of insanity, and her lack of ability to “appreciate” the
criminality of her conduct.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 149

Durham insanity defense

An insanity defense that
excuses criminal conduct
when it is caused by a mental
disease or defect. Also called
the product test.

F I G U R E 6 . 3 Substantial Capacity Insanity Defense

1.4 The Durham Insanity Defense
The Durham insanity defense is used only in New Hampshire and has been the established insanity
defense in New Hampshire since the late 1800s. The Durham defense, also called the Durham rule or
the product test, was adopted by the Circuit Court of Appeals for the District of Columbia in the case
of Durham v. U.S., 214 F.2d 862 (1954). The defense set forth in that case is as follows: “[A]n accused is
not criminally responsible if his unlawful act was the product of mental disease or mental defect.”[15]
However, the court failed to give definitions for product, mental disease, or mental defect. Thus the
Durham insanity defense is extremely difficult to apply, and the D.C. Circuit rejected it in 1972 in the
case of U.S. v. Brawner, 471 F.2d 969 (1972), which was later superseded by federal statute.[16]

In general, the Durham insanity defense relies on ordinary principles of proximate causation. The
defense has two elements. First, the defendant must have a mental disease or defect. Although these
terms are not specifically defined in the Durham case, the language of the judicial opinion indicates an
attempt to rely more on objective, psychological standards, rather than focusing on the defendant’s
subjective cognition. The second element has to do with causation. If the criminal conduct is “caused”
by the mental disease or defect, then the conduct should be excused under the circumstances.

Example of the Durham Insanity Defense

Arianna has been diagnosed with paranoia. Most psychiatric experts agree that individuals afflicted
with paranoia unreasonably believe that the human population is “out to get them.” Arianna works un-
der the direct supervision of Nora, who has a physical condition called “walleye.” Nora’s walleye makes
it appear that she is looking to the side when she addresses people. Arianna gradually becomes con-
vinced that Nora is communicating secret messages to their coworkers when she is speaking to Ari-
anna. Arianna is genuinely frightened that Nora is telling their coworkers to kill her, and she decides
she needs to defend herself. Arianna brings a gun to work one day, and when Nora begins talking to
her about her tendency to take overlong lunches, Arianna pulls the gun out of her cubicle and shoots
and kills Nora.

Arianna claims she is not guilty for killing Nora by reason of insanity. If Arianna killed Nora in
New Hampshire, she might be successful with her claim. Arianna has a mental disease or defect,

150 CRIMINAL LAW

paranoia. Arianna can probably produce evidence, such as psychiatric expert testimony, that her para-
noia “caused” or “produced” her criminal conduct, which was shooting Nora. Thus a trier of fact could
acquit Arianna on the grounds that her conduct is excusable under these circumstances.

F I G U R E 6 . 4 Durham Insanity Defense

1.5 Proving Insanity
There is generally a presumption that criminal defendants are sane, just as there is a presumption that
they are innocent. Therefore, at a minimum, a defendant claiming insanity must produce evidence that
rebuts this presumption. Some states require the prosecution to thereafter prove sanity beyond a reas-
onable doubt or to a preponderance of evidence.[17]

Post-Hinckley, many states have converted the insanity defense into an affirmative defense. Thus
as discussed in Chapter 5, the defendant may also have the burden of persuading the trier of fact that
he or she is insane to a preponderance of evidence.[18] The federal government and some other states
require the defendant to prove insanity by clear and convincing evidence, which is a higher standard
than preponderance of evidence.[19]

CHAPTER 6 CRIMINAL DEFENSES, PART 2 151

diminished capacity
defense

An imperfect failure of proof
defense that reduces
first-degree murder to
second-degree murder or
manslaughter if the
defendant did not have the
mental capacity to form
first-degree murder criminal
intent.

syndrome defense

A failure of proof defense that
claims a syndrome prevented
the defendant from forming
the requisite intent for the
crime.

mental competence to
stand trial

The defendant cannot be put
on trial if the defendant is
incapable of understanding
the proceedings against him
or her or assisting in his or her
defense because of mental
incompetence.

guilty but mentally ill
verdict

A verdict that deems the
criminal defendant mentally
ill and orders the criminal
defendant to mental health
treatment while incarcerated.

1.6 Diminished Capacity
A claim of diminished capacity differs from the insanity defense. Diminished capacity is an imper-
fect failure of proof defense recognized in a minority of jurisdictions. Diminished capacity could re-
duce a first-degree murder charge to second-degree murder or manslaughter if the defendant lacks the
mental capacity to form the appropriate criminal intent for first-degree murder.

In California, diminished capacity was abolished as an affirmative defense after San Francisco Su-
pervisor Dan White used it successfully in his trial for the murder of fellow Supervisor Harvey Milk. A
jury convicted White of voluntary manslaughter rather than first-degree premeditated murder after re-
viewing evidence that proved his diet of junk food (Twinkies) created a chemical imbalance in his
brain. In the aftermath of this highly publicized trial, California passed legislation eliminating the di-
minished capacity defense and limiting the admissibility of evidence of diminished capacity only to
sentencing proceedings.[20]

Similar to diminished capacity is the syndrome defense. A syndrome that negates the requisite
intent for the crime could function as a failure of proof defense in a minority of jurisdictions. Some
common examples of syndromes the American Psychiatric Association recognizes in the Diagnostic
and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), are antisocial personality dis-
order, posttraumatic stress disorder, and intermittent explosive disorder. Some common examples of
syndromes identified but not recognized in DSM-IV are battered woman or battered wife syndrome
(discussed in Chapter 5) and caffeine withdrawal. Although successful use of the syndrome defense is
rare, at least one case has excused a defendant’s drunken driving and assault and battery against a po-
lice officer because of premenstrual syndrome (PMS).[21]

1.7 Mental Competence to Stand Trial
The insanity defense is different from mental competence to stand trial. The insanity defense per-
tains to the defendant’s mental state when he or she commits the crime. If the insanity defense is suc-
cessful, it exonerates the defendant from guilt. Mental competence to stand trial is analyzed at the time
the trial is to take place. If the defendant is mentally incompetent to stand trial, the trial is delayed until
the defendant regains competency. Although a detailed discussion of mental competence to stand trial
is beyond the scope of this book, in general, a criminal defendant must be able to understand the
charges against him or her, and be able to assist in his or her defense. As the Model Penal Code
provides, “[n]o person who as a result of mental disease or defect lacks capacity to understand the pro-
ceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the com-
mission of an offense so long as such incapacity endures” (Model Penal Code § 4.04). A defendant who
is mentally incompetent at the time of trial is subject to mental health treatment or even involuntary
medication until competence is regained.

1.8 Guilty but Mentally Ill
Post-Hinckley, some states adopted the guilty but mentally ill verdict. A defendant who is found
guilty but mentally ill is not acquitted but punished and treated for mental health simultaneously while
in prison. Typically, the guilty but mentally ill verdict is available only when the defendant fails to
prove legal insanity, and requires the defendant to prove mental illness at the time of the crime to a
preponderance of evidence.[22]

Example of Guilty but Mentally Ill

Review the example with Jolene in Section 1. In this example, Jolene has been diagnosed with paranoia,
but shows an ability to control and understand the wrongfulness of her conduct, so she probably will
not be successful with an irresistible impulse insanity defense. If Jolene is in a state that offers a guilty
but mentally ill verdict, Jolene may be an appropriate candidate because she was mentally ill at the time
she assaulted and battered her sorority sister. If Jolene is found guilty but mentally ill, she will be
treated for her mental health simultaneously while serving any prison sentence.

152 CRIMINAL LAW

F I G U R E 6 . 5 Effects (Circular Diagram) of Mental Competency Claims

CHAPTER 6 CRIMINAL DEFENSES, PART 2 153

F I G U R E 6 . 6 Diagram of the Insanity Defense

154 CRIMINAL LAW

temporary insanity

The defendant was insane
when the crime was
committed, but later
regained sanity.

Hasan Fort Hood Shooting Video

Does Hasan Have an Insanity Defense? The Judge Rules!

In this news story on the legal implications of the Fort Hood shootings, Judge Napolitano discusses the up-
coming prosecution of Nidal Hasan and the possibility of an insanity defense.[23]

1.9 Disposition of the Legally Insane
The not guilty by reason of insanity verdict means that the defendant is absolved from criminal re-
sponsibility and devoid of any criminal record for the offense. However, it does not mean that the de-
fendant is free to return to society.

In several states and federally, a defendant who is found not guilty by reason of insanity is auto-
matically committed to a treatment facility until there is a determination that mental health has been
restored.[24] This is also the Model Penal Code approach. As the Model Penal Code states in § 4.08(1),
“[w]hen a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the
Court shall order him to be committed to the custody of the Commissioner of Mental Hygiene [Public
Health] to be placed in an appropriate institution for custody, care and treatment.”

Other states have a hearing on sanity after the judgment or verdict of not guilty by reason of insan-
ity is returned. If the defendant is deemed mentally competent at the hearing, he or she is released. If
the defendant is found mentally ill at the hearing, he or she is committed to the appropriate treatment
facility.[25]

1.10 Temporary Insanity
Many states also recognize temporary insanity, which does not differ in analysis from permanent in-
sanity except for the duration of the mental illness.[26] In a state that recognizes temporary insanity, the
elements of the state’s insanity defense, either M’Naghten, irresistible impulse, substantial capacity, or
Durham, must be present at the time the crime was committed. If the defendant is found not guilty by
reason of insanity for the criminal offense, but regains mental competence at the time of prosecution,
the defendant is released after the verdict is rendered. The trial court will order release based on the
commitment procedure discussed in Section 1.

Example of Temporary Insanity

In Virginia in 1994, Lorena Bobbitt was tried for the crime of slicing off her husband’s penis. Bobbitt
pleaded not guilty to malicious wounding by reason of insanity. Bobbitt successfully established the ir-
resistible impulse insanity defense by presenting evidence of years of spousal abuse, a forced abortion,
and rape on the night of the incident.[27] After the jury returned the verdict of not guilty by reason of
insanity, Bobbitt was evaluated, deemed mentally competent, and released.[28]

View the video online at: http://www.youtube.com/v/pUzcIS5MJjw

CHAPTER 6 CRIMINAL DEFENSES, PART 2 155

Lorena Bobbitt Trial Video

Lorena Bobbitt Trial, Day One

This news story discusses the first day of the Lorena Bobbitt trial.[29]

K E Y T A K E A W A Y S

< The four states that do not recognize the insanity defense are Montana, Utah, Kansas, and Idaho.

< The four versions of the insanity defense are M’Naghten, irresistible impulse, substantial capacity, and
Durham.

< The two elements of the M’Naghten insanity defense are the following:

< The defendant must be suffering from a mental defect or disease at the time of the crime.

< The defendant did not know the nature or quality of the criminal act he or she committed or that
the act was wrong because of the mental defect or disease.

< The two elements of the irresistible impulse insanity defense are the following:

< The defendant must be suffering from a mental defect or disease at the time of the crime.

< The defendant could not control his or her criminal conduct because of the mental defect or
disease.

< The substantial capacity test softens the second element of the M’Naghten and irresistible impulse insanity
defenses. Under the substantial capacity test, the defendant must lack substantial, not total, capacity to
appreciate the criminality of conduct or to control or conform conduct to the law.

< The Durham insanity defense excuses criminal conduct when it is caused by a mental disease or defect.

< The criminal defendant pleading not guilty by reason of insanity must produce evidence to rebut the
presumption that criminal defendants are sane. Thereafter, either the prosecution has the burden of
disproving insanity to a certain evidentiary standard or the defendant has the burden of proving insanity
to a preponderance of evidence or clear and convincing evidence.

< The diminished capacity defense is a failure of proof imperfect defense that may reduce a first-degree
murder to second-degree murder or manslaughter if the defendant did not have the mental capacity to
form first-degree murder criminal intent. The insanity defense is generally a perfect affirmative defense in
many jurisdictions.

< The insanity defense exonerates the defendant from criminal responsibility. Mental incompetence to stand
trial delays the criminal trial until mental competency is regained.

< The guilty but mentally ill verdict finds the criminal defendant guilty but orders him or her to undergo
mental health treatment while incarcerated. The insanity defense is generally a perfect affirmative defense
in many jurisdictions.

< The federal government and some states automatically commit a criminal defendant to a mental health
facility after an acquittal based on insanity. Other states have a postverdict hearing to rule on commitment.

< A claim of temporary insanity is the same as a claim of insanity except for the duration of the mental
illness.

View the video online at: http://www.youtube.com/v/3XnuPOk144c

156 CRIMINAL LAW

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Jeffrey is diagnosed with schizophrenia. For fifteen years, Jeffrey kidnaps, tortures, kills, and eats human
victims. Jeffrey avoids detection by hiding his victims’ corpses in various locations throughout the city. If
the jurisdiction in which Jeffrey commits these crimes recognizes the M’Naghten insanity defense, can
Jeffrey successfully plead and prove insanity? Why or why not?

2. Read State v. Guido, 191 A.2d 45 (1993). In Guido, the defendant killed her husband and claimed insanity in
a jurisdiction that recognizes the M’Naghten insanity defense. Psychiatric experts examined the defendant
and deemed her legally sane at the time of the killing. The experts thereafter met with the defendant’s
attorney and changed their opinion to state that the defendant was legally insane at the time of the killing.
The jury found the defendant sane after being made aware of this discrepancy. Did the New Jersey
Supreme Court uphold the defendant’s conviction? The case is available at this link:
http://lawschool.courtroomview.com/acf_cases/8791-state-v-guido.

3. Read State v. Hornsby, 484 S.E.2d 869 (1997). In Hornsby, the defendant sought to reverse his convictions for
burglary and murder after jury verdicts of guilty but mentally ill. The defendant wanted to invalidate South
Carolina’s statute recognizing the verdict of guilty but mentally ill as unconstitutional. The defendant
claimed that defendants incarcerated after guilty but mentally ill verdicts receive the same mental health
treatment as defendants incarcerated under regular guilty verdicts, violating the Fourteenth Amendment
due process clause. Did the Supreme Court of South Carolina uphold the statute? The case is available at
this link: http://scholar.google.com/
scholar_case?case=13615864613799310547&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

L A W A N D E T H I C S : T H E E L I Z A B E T H S M A R T C A S E

Two Prosecutions—Two Different Results

In 2002, Brian David Mitchell and his accomplice and wife, Wanda Barzee, kidnapped fourteen-year-old Eliza-
beth Smart from her home. Mitchell, a so-called street preacher, and Barzee held Smart captive for nine
months, tethering her to a metal cable, subjecting her to daily rapes, and forcing her to ingest alcohol and
drugs.[30] At one point, they transported Smart across state lines to California. Mitchell was put on trial for kid-
napping and sexual assault in the state of Utah. The trial court found Mitchell incompetent to stand trial, and
did not make a ruling forcing him to submit to medication to remedy the incompetency.[31] Unlike Mitchell,
Barzee was involuntarily medicated pursuant to a state court order (by the same judge that heard Mitchell’s
incompetency claim), and pleaded guilty to federal and state kidnapping, sexual assault, and illegal transport-
ation of a minor for sex, receiving two fifteen-year sentences, to be served concurrently.[32] The federal gov-
ernment also instituted a prosecution against Mitchell for kidnapping and taking Smart across state lines for
sex. The US District Court judge held a competency hearing and found that Mitchell was competent to stand
trial.[33] Mitchell pleaded not guilty by reason of insanity. Throughout the trial, Mitchell was often removed
from the courtroom for loudly singing Christmas carols and hymns. A serious of experts testified regarding
Mitchell’s psychological ailments, including a rare delusional disorder, schizophrenia, pedophilia, and antiso-
cial personality disorder. Nonetheless, the jury rejected the insanity defense and convicted Mitchell of kidnap-
ping and transporting a minor across state lines for the purpose of illegal sex.[34]

If Mitchell had not committed federal crimes, he might still be awaiting trial in Utah.

1. What is the purpose of putting Mitchell on trial rather than delaying the trial for mental incompetency? Is
this purpose ethical?

Check your answer using the answer key at the end of the chapter.

Read about Mitchell’s sentencing at http://content.usatoday.com/communities/ondeadline/post/2011/05/
elizabeth-smarts-kidnapper-sentenced-to-xx-years-in-prison/1.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 157

infancy

A defense that asserts the
defendant is too young to
form the requisite intent for
the crime.

Brian David Mitchell Video

Suspect Deemed Competent in Elizabeth Smart Case

This video is a news story on the federal court’s ruling that Brian David Mitchell was mentally competent to
stand trial in the Elizabeth Smart case:

2. INFANCY, INTOXICATION, IGNORANCE, AND
MISTAKE

L E A R N I N G O B J E C T I V E S

1. Define the infancy defense.
2. Distinguish a juvenile court adjudication from a criminal prosecution.
3. Ascertain four criteria that could support a juvenile court waiver of jurisdiction.
4. Identify a situation where voluntary intoxication may provide a defense.
5. Define involuntary intoxication.
6. Compare the defenses of voluntary and involuntary intoxication.
7. Identify a situation where mistake of law may provide a defense.
8. Identify a situation where mistake of law is not a valid defense.
9. Identify a situation where mistake of fact may provide a defense.

10. Identify a situation where mistake of fact is not a valid defense.

2.1 Infancy
Many states recognize the defense of infancy. Infancy asserts that the defendant is not subject to crim-
inal prosecution because he or she is too young to commit a crime. The policy supporting the infancy
defense is the belief that juvenile defendants are too immature to form criminal intent. The infancy de-
fense is typically statutory and can be perfect or imperfect, depending on the jurisdiction.

States divide up the jurisdiction of criminal defendants between juvenile courts and adult courts.
Juvenile court systems generally retain jurisdiction over criminal defendants under the age of sixteen,
seventeen, or eighteen, with exceptions. The Model Penal Code position is that “[a] person shall not be
tried for or convicted of an offense if: (a) at the time of the conduct charged to constitute the offense he
was less than sixteen years of age, [in which case the Juvenile Court shall have exclusive jurisdiction]”
(Model Penal Code § 4.10(1)(a)).

The primary purpose of a juvenile court adjudication is rehabilitation. The goal is to reform the
minor before he or she becomes an adult. In most states, the infancy defense protects a youthful de-
fendant from criminal prosecution as an adult; it does not prohibit a juvenile adjudication. Most minor
defendants are adjudicated in juvenile court, so the infancy defense is rarely used.

Juveniles can be prosecuted as adults under certain specified circumstances. At early common law,
criminal defendants were divided into three age groups. Those under the age of seven were deemed in-
capable of forming criminal intent, and could not be criminally prosecuted. Defendants between the

View the video online at: http://www.youtube.com/v/-v615MAshkU

158 CRIMINAL LAW

waiver

The process by which a
juvenile court forfeits
jurisdiction over a minor.

concurrent or
simultaneous jurisdiction

Two courts have jurisdiction
over an individual
simultaneously.

intoxication

A mental or physical
disturbance caused by
alcohol, illegal drugs, or legal
drugs.

ages of seven and fourteen were provided a rebuttable presumption that they lacked the mental capa-
city to form criminal intent. Once a defendant turned fourteen, he or she was subject to an adult crim-
inal prosecution. Modern statutes codify the adult criminal prosecution standard for different age
groups. Some states follow the early common law and set up rebuttable and irrebuttable presumptions
based on the defendant’s age.[35] Other states set forth a minimum age, such as fourteen or sixteen, and
defendants who have reached that age are prosecuted as adults.[36]

When a juvenile court has jurisdiction, the jurisdiction must be forfeited if the juvenile is to be
prosecuted as an adult. This process is called waiver. Juvenile courts can have exclusive jurisdiction
over minors under eighteen, or concurrent or simultaneous jurisdiction with adult courts, de-
pending on the state.

States vary as to the waiver procedure. Some states allow judges to use discretion in granting the
waiver, while others vest this power in the legislature or the prosecutor.[37] A few factors serve as criter-
ia supporting the waiver to adult criminal court: the nature of the offense, the sophistication it requires,
the defendant’s criminal history, and the threat the defendant poses to public safety.[38]

Example of the Infancy Defense

Mario is ten years old. Mario shoplifts some candy from the local market and is arrested. The newly
elected district attorney decides to make an example of Mario, and begins an adult criminal prosecu-
tion against him for theft. In Mario’s state, the juvenile court has exclusive jurisdiction over individuals
under the age of eighteen. Mario can probably claim infancy as a perfect defense to the theft charge.
Mario should be adjudicated in juvenile court, not prosecuted as an adult. Therefore, the juvenile court
has jurisdiction in this case and Mario’s criminal prosecution should be dismissed.

2.2 Intoxication
Intoxication is another defense that focuses on the defendant’s inability to form the requisite criminal
intent. In general, intoxication can be based on the defendant’s use of alcohol, legal drugs, or illegal
drugs. The Model Penal Code defines intoxication as “a disturbance of mental or physical capacities
resulting from the introduction of substances into the body” (Model Penal Code § 2.08(5) (a)). The in-
toxication defense could be perfect or imperfect, statutory or common law, depending on the
jurisdiction.

Intoxication is a state that is achieved either voluntarily or involuntarily. Most states frown on the
use of voluntary intoxication as a defense, and allow it only to reduce the severity of the crime
charged.[39] Recall from Chapter 4 that if a defendant voluntarily undertakes action, such as drinking or
ingesting drugs, the voluntary act requirement is met. Conduct that occurs after the voluntary intoxic-
ation probably is not excused unless the intoxication prevents the defendant from forming the criminal
intent required for the offense.[40] If the crime charged is a reckless intent crime, voluntary intoxication
rarely provides even an imperfect defense.[41]

Involuntary intoxication is more likely to provide a defense than voluntary intoxication. Gener-
ally, a defendant can claim involuntary intoxication if he or she ingested the drug or alcohol unknow-
ingly or under force, duress, or fraud.[42] Involuntary intoxication could affect the defendant’s ability to
form criminal intent, thus negating specific intent, dropping murder a degree, or converting murder to
manslaughter. The Model Penal Code equates involuntary intoxication with the substantial capacity
test, providing “[i]ntoxication which (a) is not self-induced…is an affirmative defense if by reason of
such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its
criminality [wrongfulness] or to conform his conduct to the requirements of law” (Model Penal Code
§ 2.08 (4)).

Example of the Intoxication Defense

Clint slips a date rape drug into Delilah’s drink at a fraternity party. Delilah is twenty-one and legally
able to consume alcohol. The date rape drug produces a state of unconsciousness during which Delilah
severely beats a sorority sister. Delilah can probably claim involuntary intoxication as a defense in this
situation. Although Delilah voluntarily drank the alcohol, she became intoxicated from the date rape
drug that she ingested unknowingly. Delilah could be acquitted or could have a charge of aggravated
battery reduced, depending on the jurisdiction.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 159

mistake of law

A defense that asserts the
defendant incorrectly
believes his or her conduct is
legal, negating the requisite
intent for the crime.

mistake of fact

A defense that asserts the
facts as the defendant
incorrectly believes them to
be negate the requisite intent
for the crime.

F I G U R E 6 . 7 Crack the Code

2.3 Ignorance and Mistake
Occasionally, a defendant’s mistake negates the criminal intent required for an offense. Mistakes can
be a mistake of law or a mistake of fact. Mistake of law and fact defenses can be statutory or com-
mon law, perfect or imperfect, depending on the jurisdiction.

Mistake of Law

The basis of the mistake of law defense is that the defendant believes his or her criminal conduct is leg-
al. The defense could be a failure of proof defense or an affirmative defense of excuse, depending on the
jurisdiction.[43] The Model Penal Code provides, “Ignorance or mistake as to a matter of fact or law is a
defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negli-
gence required to establish a material element of the offense; or (b) the law provides that the state of
mind established by such ignorance or mistake constitutes a defense” (Model Penal Code § 2.04(1)).

Most states require that the mistake of law be founded on a statute or judicial decision that is later
overturned.[44] The Model Penal Code states, “A belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such conduct when…the actor…acts
in reasonable reliance upon an official statement of the law, afterward determined to be inval-
id…contained in…a statute or…judicial decision” (Model Penal Code § 2.04(3) (b)).

Incorrect advice from a licensed attorney cannot form the basis of a mistake of law defense.[45] Nor
can mistake of law be rooted in ignorance of the law because all individuals are required to know the
criminal laws effective in their jurisdiction. The Model Penal Code provides, “A belief that conduct
does not legally constitute an offense is a defense to a prosecution for that offense based upon such

160 CRIMINAL LAW

conduct when: the statute or other enactment defining the offense is not known to the actor and has
not been published or otherwise made available prior to the conduct” (Model Penal Code § 2.04(3)
(a)).

Example of the Mistake of Law Defense
Shelby, an attorney, researches current case law and determines that it is legal to sell products over the
Internet and not charge sales tax. Shelby starts selling designer clothing on eBay and does not charge
her customers any sales tax. The case decision that Shelby relied on is overturned by a court of appeals.
Shelby can probably assert mistake of law as a defense to the crime of evading payment of sales tax.

Example of a Case That Is Inappropriate for the Mistake of Law Defense
Review the mistake of law defense example given in Section 2. Assume that in Shelby’s state, it is cur-
rently illegal to sell products over the Internet without charging sales tax. Jonathan meets with Shelby,
and asks her to research whether he needs to charge sales tax when he sells products over the Internet.
Shelby agrees to research the matter and get back to Jonathan the next day with an answer. After
Jonathan leaves, Shelby is contacted by her friend Margaret, who wants to take an impromptu trip to
New York City. Margaret asks Shelby if she would like to come along. Shelby agrees, rushes home,
packs for the trip, and leaves with Margaret. The next day while Shelby is watching a Broadway play
with Margaret, Jonathan calls Shelby on her cell phone and asks Shelby what her research revealed
about the sales tax question. Even though she has not done any research on the matter, Shelby re-
sponds, “I just finished the research. You do not need to charges sales tax when you sell products over
the Internet.” If Jonathan thereafter relies on Shelby’s incorrect advice, and sells products over the In-
ternet without charging sales tax, he probably will not be able to assert mistake of law as a defense. In-
correct advice from an attorney cannot excuse criminal conduct, even if the crime is committed be-
cause of the faulty legal opinion. Therefore, Jonathan could be charged with tax evasion in this
situation.

Mistake of Fact

Mistake of fact is more likely to provide a defense than mistake of law. If the facts as the defendant be-
lieves them to be negate the requisite intent for the crime at issue, the defendant can assert mistake of
fact as a defense.[46] Mistake of fact is generally not a defense to strict liability crimes because intent is
not an element of a strict liability offense.[47]

Example of the Mistake of Fact Defense
Mickie sees Rachel, his neighbor, riding his bicycle in her driveway. Mickie walks quickly up to Rachel
and demands that she get off the bike and return it to his garage. Frightened, Rachel hops off and runs
to her house, leaving the bike behind. Mickie walks the bike over to his garage. Once Mickie reaches
the garage, he sees that his bike, which is an exact replica of Rachel’s, is already inside. Mickie may be
able to use mistake of fact as a defense to theft. As is discussed in Chapter 11, the intent for theft is the
intent to take the property of another person. Mickie believed Rachel’s bike was his. Thus Mickie’s mis-
take of fact negates the intent required for this offense.

Example of a Case That Is Inappropriate for the Mistake of Fact Defense
Tina is pulled over for speeding. Tina claims her speedometer is broken, so she was mistaken as to her
speed. Tina probably cannot assert mistake of fact as a defense in this case. Speeding is generally a
strict liability offense. Thus Tina’s mistaken belief as to the facts is not relevant because there is no in-
tent required for this crime.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 161

F I G U R E 6 . 8 Comparison of Infancy, Intoxication, and Mistake

162 CRIMINAL LAW

K E Y T A K E A W A Y S

< Infancy is a defense to an adult criminal prosecution if the defendant is too young to form the requisite
criminal intent for the offense.

< The purpose of an adult criminal prosecution is punishment; the purpose of a juvenile adjudication is
rehabilitation of the minor before he or she becomes an adult.

< Four criteria that could support a juvenile court waiver of jurisdiction are the nature of the offense, the
sophistication it requires, the defendant’s criminal history, and the threat the defendant poses to public
safety.

< Voluntary intoxication may provide a defense if the intoxication prevents the defendant from forming the
requisite criminal intent for the offense.

< Involuntary intoxication is intoxication achieved unknowingly or pursuant to force, duress, or fraud.

< Voluntary intoxication is frowned on as a defense and in many states does not provide a defense to certain
crimes, such as reckless intent crimes. Involuntary intoxication is more likely to serve as a defense any time
the defendant is incapable of forming the requisite criminal intent for the offense.

< Mistake of law may provide a defense if the defendant believes his or her conduct is legal because of
reliance on a statute or judicial opinion that is later overturned.

< Mistake of law is not a defense when the defendant believes his or her conduct is legal because of reliance
on the incorrect advice of an attorney.

< If the facts as the defendant believes them to be prevent the defendant from forming the requisite intent
for the crime, mistake of fact could be a valid defense.

< Mistake of fact is not a defense to strict liability crimes because intent is not an element.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Burt, a sixteen-year-old, consumes alcohol for the first time at a party. Unaware of alcohol’s effect, Burt
drinks too much, attempts to walk home, and is cited for being drunk in public. In Burt’s state, the juvenile
court has concurrent jurisdiction over minors ages seventeen and under, with a waiver to adult court
available at the judge’s discretion. Burt has not broken any laws before. Is it likely that the judge will waive
juvenile court jurisdiction in this case and allow the adult criminal prosecution of Burt? Why or why not?

2. Read People v. Register, 60 N.Y.2d 270 (1983). In Register, the defendant shot and killed an individual in a bar
after drinking heavily for many hours. The defendant thereafter sought a jury instruction on the
intoxication defense to a charge of depraved mind murder. The trial court refused, and the defendant
was convicted. Did the Court of Appeals of the State of New York uphold the conviction? The case is
available at this link: http://scholar.google.com/
scholar_case?case=9019321014077082981&hl=en&as_sdt=2&as_vis=1&oi=.

3. Read Garnett v. State, 632 A.2d 797 (1993). In Garnett, the defendant, an intellectually disabled twenty-year-
old, had sexual intercourse with a thirteen-year-old girl whom he believed to be sixteen, and was
prosecuted for statutory rape. Did the Court of Appeals of Maryland reverse the trial court and allow the
defendant to assert mistake of fact (the victim’s age) as a defense? Why or why not? The case is available
at this link: http://scholar.google.com/
scholar_case?case=9331824442522694687&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 163

entrapment

A defense that asserts the
requisite intent for the crime
originated with the
government or law
enforcement, not the
defendant.

subjective entrapment

Law enforcement pressures
the defendant to commit a
crime against his or her will.

objective entrapment

Law enforcement uses tactics
that would induce a
reasonable, law-abiding
person to commit a crime.

3. ENTRAPMENT

L E A R N I N G O B J E C T I V E

1. Compare the subjective and objective entrapment defenses.

Historically, no legal limit was placed on the government’s ability to induce individuals to commit
crimes. The Constitution does not expressly prohibit this governmental action. Currently, however, all
states and the federal government provide the defense of entrapment. The entrapment defense is
based on the government’s use of inappropriately persuasive tactics when apprehending criminals. En-
trapment is generally a perfect affirmative statutory or common-law defense.

Entrapment focuses on the origin of criminal intent. If the criminal intent originates with the gov-
ernment or law enforcement, the defendant is entrapped and can assert the defense. If the criminal in-
tent originates with the defendant, then the defendant is acting independently and can be convicted of
the offense. The two tests of entrapment are subjective entrapment and objective entrapment.
The federal government and the majority of the states recognize the subjective entrapment defense.[48]
Other states and the Model Penal Code have adopted the objective entrapment defense.[49]

3.1 Subjective Entrapment
It is entrapment pursuant to the subjective entrapment defense when law enforcement pressures the
defendant to commit the crime against his or her will. The subjective entrapment test focuses on the
defendant’s individual characteristics more than on law enforcement’s behavior. If the facts indicate
that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant
will not prevail on the defense.

The defendant’s criminal record is admissible if relevant to prove the defendant’s criminal nature
and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and
feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the
requisite intent for the offense originated with law enforcement, not the defendant, the defendant can
assert subjective entrapment as a defense.

Example of Subjective Entrapment

Winifred regularly attends Narcotics Anonymous (NA) for her heroin addiction. All the NA attendees
know that Winifred is a dedicated member who has been clean for ten years, Marcus, a law enforce-
ment decoy, meets Winifred at one of the meetings and begs her to “hook him up” with some heroin.
Winifred refuses. Marcus attends the next meeting, and follows Winifred out to her car pleading with
her to get him some heroin. After listening to Marcus explain his physical symptoms of withdrawal in
detail, Winifred feels pity and promises to help Marcus out. She agrees to meet Marcus in two hours
with the heroin. When Winifred and Marcus meet at the designated location, Marcus arrests Winifred
for sale of narcotics. Winifred may be able to assert entrapment as a defense if her state recognizes the
subjective entrapment defense. Winifred has not used drugs for ten years and did not initiate contact
with law enforcement. It is unlikely that the intent to sell heroin originated with Winifred because she
has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to
maintain her sobriety. Thus it appears that Marcus pressured Winifred to sell heroin against a natural
predisposition, and the entrapment defense may excuse her conduct.

3.2 Objective Entrapment
The objective entrapment defense focuses on the behavior of law enforcement, rather than the individu-
al defendant. If law enforcement uses tactics that would induce a reasonable, law-abiding person to
commit the crime, the defendant can successfully assert the entrapment defense in an objective entrap-
ment jurisdiction. The objective entrapment defense focuses on a reasonable person, not the actual de-
fendant, so the defendant’s predisposition to commit the crime is not relevant. Thus in states that re-
cognize the objective entrapment defense, the defendant’s criminal record is not admissible to disprove
the defense.

164 CRIMINAL LAW

Example of Objective Entrapment

Winifred has a criminal record for prostitution. A law enforcement decoy offers Winifred $10,000 to
engage in sexual intercourse. Winifred promptly accepts. If Winifred’s jurisdiction recognizes the ob-
jective entrapment defense, Winifred may be able to successfully claim entrapment as a defense to
prostitution. A reasonable, law-abiding person could be tempted into committing prostitution for a
substantial sum of money like $10,000. The objective entrapment defense focuses on law enforcement
tactics, rather than the predisposition of the defendant, so Winifred’s criminal record is irrelevant and
is not admissible as evidence. Thus it appears that law enforcement used an excessive inducement, and
entrapment may excuse Winifred’s conduct in this case.

F I G U R E 6 . 9 Comparison of Subjective and Objective Entrapment

F I G U R E 6 . 1 0 Diagram of Defenses, Part 2

CHAPTER 6 CRIMINAL DEFENSES, PART 2 165

K E Y T A K E A W A Y

< The subjective entrapment defense focuses on the individual defendant, and provides a defense if law
enforcement pressures the defendant to commit the crime against his or her will. If the defendant is
predisposed to commit the crime without this pressure, the defendant will not be successful with the
defense. Pursuant to the subjective entrapment defense, the defendant’s criminal record is admissible to
prove the defendant’s predisposition. The objective entrapment defense focuses on law enforcement
behavior, and provides a defense if the tactics law enforcement uses would convince a reasonable, law-
abiding person to commit the crime. Under the objective entrapment defense, the defendant’s criminal
record is irrelevant and inadmissible.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Allen has a criminal record for burglary. Roger, a law enforcement decoy, approaches Allen and asks if he
would like to purchase methamphetamine. Allen responds that he would and is arrested. This interaction
takes place in a jurisdiction that recognizes the subjective entrapment defense. If Allen claims
entrapment, will Allen’s criminal record be admissible to prove his predisposition to commit the crime at
issue? Why or why not?

2. Read Sosa v. Jones, 389 F.3d 644 (2004). In Jones, the US District Court for the Eastern District of Michigan
denied the defendant’s petition for a writ of habeas corpus after he was sentenced to life in prison for
conspiracy to sell and sale of cocaine. The defendant claimed he had been deprived of due process and
was subjected to sentencing entrapment when federal agents delayed a sting operation to increase the
amount of cocaine sold with the intent of increasing the defendant’s sentencing to life in prison without
the possibility of parole. Did the US Court of Appeals for the Sixth Circuit reverse the district court and
grant the defendant’s petition? The case is available at this link: http://openjurist.org/389/f3d/644/
sosa-v-jones.

3. Read Farley v. State, 848 So.2d 393 (2003). In Farley, the government contacted the defendant, who had no
criminal record, in a reverse sting operation with a mass e-mail soliciting individuals to purchase hard-core
pornography. The defendant responded to the e-mail and was thereafter sent a questionnaire asking for
his preferences. The defendant responded to the questionnaire, and an e-mail exchange ensued. In every
communication by the government, protection from governmental interference was promised.
Eventually, the defendant purchased child pornography and was arrested and prosecuted for this offense.
The defendant moved to dismiss based on subjective and objective entrapment and the motion to
dismiss was denied. The defendant was thereafter convicted. Did the Court of Appeal of Florida uphold
the defendant’s conviction? The case is available at this link: http://www.lexisone.com/lx1/caselaw/
freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjgjg&searchTerm=
eiYL.TYda.aadj.ecCQ&searchFlag=y&l1loc=FCLOW.

4. END-OF-CHAPTER MATERIAL

Summary

The federal government and every state except Montana, Utah, Kansas, and Idaho recognize the insanity de-
fense. A not guilty by reason of insanity verdict is an acquittal for the offense. The policy supporting the insan-
ity defense is the lack of deterrent effect when punishing the legally insane. Four insanity defenses are recog-
nized in the United States: M’Naghten, irresistible impulse, substantial capacity, and Durham. The M’Naghten
insanity defense is cognitive and excuses criminal conduct when the defendant is suffering from a mental de-
fect or disease that prevents the defendant from knowing the nature or quality of conduct or from knowing
that conduct is wrong. The irresistible impulse insanity defense adds a volitional component and excuses con-
duct the defendant cannot control because of a mental defect or disease. The substantial capacity test was
created by the Model Penal Code and softens the requirements to substantial, rather than total, capacity to
appreciate the criminality of conduct or to conform conduct to the law. The Durham insanity defense is recog-
nized only in New Hampshire, and excuses conduct that is the product of or caused by a mental disease or de-
fect. Jurisdictions vary as to the burden of proving insanity. All jurisdictions require the defendant to rebut a
presumption that he or she is sane; some also require the defendant to persuade the trier of fact that he or she
is legally insane to a preponderance of evidence or clear and convincing evidence (which is a higher standard
than preponderance of evidence).

166 CRIMINAL LAW

A minority of jurisdictions recognizes diminished capacity and the syndrome defense when the defendant
cannot form the requisite criminal intent for the offense because of a mental impairment. The criminal defend-
ant must also be mentally competent to stand trial, which means the defendant can understand the charges
brought against him or her and can assist in any defense. Some jurisdictions recognize a guilty but mentally ill
verdict, which does not exonerate the defendant, but provides for mental health treatment while incarcerated.
Temporary insanity is also a defense in some jurisdictions and does not differ from the insanity defense except
for the duration of the mental defect or disease.

The infancy defense excuses conduct when the defendant is too young to form criminal intent for the offense.
The infancy defense is generally not available in juvenile adjudications, so it is rarely asserted because most
youthful defendants are under the jurisdiction of juvenile courts. Juvenile courts can waive this jurisdiction and
allow for an adult criminal prosecution under certain circumstances, considering the criteria of the nature of
the offense, the sophistication it requires, the defendant’s prior criminal history, and the threat the defendant
poses to public safety.

Other excuse defenses are intoxication, ignorance, and mistake. Voluntary intoxication is frowned on as a de-
fense, but will occasionally excuse conduct if it negates certain high-level criminal intent requirements. Invol-
untary intoxication, which is intoxication achieved unknowingly, or under duress or fraud, is more likely to
provide a defense if it affects the defendant’s capacity to form criminal intent. Ignorance of the law is not a de-
fense because individuals are expected to know the laws of their jurisdiction. Mistake of law, which means the
defendant does not know conduct is illegal, functions as a defense if the mistake is based on a judicial opinion
or statute that is later overturned. Mistake of law is not a defense if the mistake is rooted in incorrect legal ad-
vice from an attorney. Mistake of fact is a defense if the facts as the defendant believes them to be negate the
intent required for the offense.

Entrapment is also a defense in every jurisdiction. Most states and the federal government recognize the sub-
jective entrapment defense, which focuses on the defendant’s predisposition, and does not excuse conduct if
the defendant would have committed the crime without law enforcement pressure. In a subjective entrap-
ment jurisdiction, the defendant’s criminal record is admissible to prove predisposition to commit the crime at
issue. Objective entrapment is the Model Penal Code approach and excuses conduct if the pressure by law en-
forcement would induce a reasonable, law-abiding person to commit the crime. The defendant’s criminal re-
cord is not admissible to show predisposition in an objective entrapment jurisdiction because the focus is on
law enforcement tactics, not the defendant’s nature.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 167

Y O U B E T H E D E F E N S E A T T O R N E Y

You are a well-known private defense attorney with a perfect record. Read the prompt, review the case, and
then decide whether you would accept or reject it if you want to maintain your level of success. Check your
answers using the answer key at the end of the chapter.

1. The defendant shot and killed a police officer and then escaped on foot. He was thereafter charged with
first-degree murder. The defendant wants to claim that his diagnosed paranoid schizophrenia affected his
ability to form the intent required for murder. In your state (Arizona), the defendant cannot introduce this
argument to negate intent; he can only plead insanity under an abbreviated version of M’Naghten, which
requires proof that the defendant did not know his conduct was wrong because of a mental defect or
disease. Will you accept or reject the case? Read Clark v. Arizona, 548 U.S. 735 (2006), which is available at
this link: http://scholar.google.com/scholar_case?case=5050526068124331217&q=
Clark+v.+Arizona&hl=en&as_sdt=2,5&as_vis=1.

2. The defendant, an eleven-year-old boy, had sexual intercourse with a seven-year-old boy and was charged
with two counts of first-degree rape of a child. Three experts questioned the defendant, and two
concluded he lacked the capacity to form the intent for rape. This conclusion was based on the
defendant’s response that the sexual contact was consensual and felt good. The defendant wants to
present the infancy defense. Will you accept or reject the case? Read State v. Ramer, 86 P.3d 132 (2004),
which is available at this link: http://scholar.google.com/
scholar_case?case=14834415223416879505&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. The defendant, a diabetic, injected an abnormally large dose of insulin before his daughter’s birthday
party. He and his estranged wife went to the store to buy party supplies. When they returned to the
defendant’s vehicle, he hit her in the head with a hammer. She escaped the vehicle, and he caught up
with her and ran her over. The defendant wants to claim involuntary intoxication as a defense to first-
degree assault, domestic violence, and attempted first-degree murder. Will you accept or reject the case?
Read People v. Garcia, 87 P.3d 159 (2003), which is available at this link: http://www.lexisone.com/lx1/
caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdidhf&searchTerm=
ejjH.CGHa.aadj.eeNd&searchFlag=y&l1loc=FCLOW.

4. The defendant and a narcotics decoy have been acquainted for several years. The narcotics decoy set up a
sale transaction between the defendant and a police officer, the defendant made the sale, and was
thereafter charged with delivery of a controlled substance. The defendant claims that the decoy’s status as
his friend, and numerous phone calls to set up the narcotics sale pressured him to commit the crime and
he wants to claim entrapment. Your state (Texas) allows the defense of objective entrapment, focusing on
law enforcement tactics. Will you accept or reject the case? Read Sebesta v. State, 783 S.W.2d 811 (1990),
which is available at this link: http://scholar.google.com/
scholar_case?case=7939192026130608711&hl=en&as_sdt=2002&as_vis=1.

Cases of Interest

< U.S. v. Hinckley, 493 F.Supp. 2d 65 (2007), discusses St. Elizabeth Hospital’s proposal for the conditional
release of John W. Hinckley: http://fl1.findlaw.com/news.findlaw.com/wp/docs/hinckley/
ushinckley121703opn.pdf.

< Graham v. Florida, 130 S. Ct. 2011(2010), discusses sentencing a juvenile offender to life in prison:
http://scholar.google.com/scholar_case?case=6982366090819046045&q=
Graham+v.+Florida&hl=en&as_sdt=2,5.

< Legue v. State, 688 N.E.2d 408 (1997), discusses voluntary intoxication: http://scholar.google.com/
scholar_case?case=15549524331562340362&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

< U.S. v. Albertini, 830 F.2d 985 (1987), discusses mistake of law: http://lawschool.courtroomview.com/
acf_cases/8647-united-states-v-albertini.

Articles of Interest

< The insanity defense and recent US Supreme Court decisions: http://www.law.indiana.edu/ilj/
volumes/v81/no4/14_Grachek.pdf

< The insanity defense for Jared Lee Loughner, the shooter of US Representative Gabrielle Giffords (D-
AZ): http://www.nwherald.com/2011/01/10/insanity-defense-difficult-for-loughner/a8b43du

< The ruling that Jared Lee Loughner is incompetent to stand trial for the shooting of Representative
Giffords: http://www.msnbc.msn.com/id/43165830/ns/us_news-crime_and_courts/t/ariz-shooting
-spree-suspect-incompetent-trial

168 CRIMINAL LAW

< The defense of caffeine overdose: http://www.aolnews.com/2010/09/20/caffeine-intoxication
-insanity-as-legal-defense-strategy

< Entrapment: http://www.allbusiness.com/legal/laws/885814-1.html

Websites of Interest

< Insanity laws by state: http://criminal.findlaw.com/crimes/more-criminal-topics/insanity-defense/
the-insanity-defense-among-the-states.html

< Information about entrapment: http://www.wopular.com/newsracks/entrapment

Statistics of Interest

< Juvenile crime in the United States: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2028

Answers to Exercises

From Section 1

1. Jeffrey will not be successful in a jurisdiction that recognizes the M’Naghten insanity defense.
Although Jeffrey has a mental defect or disease, schizophrenia, Jeffrey’s behavior in hiding the
victims’ corpses indicates that he knows his behavior is wrong. Thus Jeffrey cannot produce
evidence establishing the second element of M’Naghten.

2. The New Jersey Supreme Court reversed the defendant’s conviction, holding that the experts
changed their opinion after being educated as to the meaning of mental defect or disease under
M’Naghten. Thus the change by the experts was not fraudulent and the defendant was entitled to a
retrial.

3. The Supreme Court of South Carolina upheld the convictions and the statute. The court held that the
statute rationally accomplishes its goals, and guilty but mentally ill defendants receive immediate
rather than delayed treatment, which complies with due process.

Answers to Exercises

From Section 2

1. It is unlikely that the judge will waive juvenile court jurisdiction in this case. Some of the criteria a
judge will analyze when waiving jurisdiction are the nature of the offense, the sophistication it
requires, the defendant’s criminal history, and the threat the defendant poses to public safety. This is
Burt’s first offense, and it did not involve violence or require much sophistication. Thus the judge will
probably allow Burt to be adjudicated in juvenile court.

2. The Court of Appeals of the State of New York upheld the defendant’s conviction and the trial court’s
refusal to instruct the jury on intoxication. The court based its holding on the depraved mind murder
statute, which requires reckless criminal intent, and the intoxication defense statute, which disallows
evidence of intoxication as a defense to a reckless intent crime.

3. The Court of Appeals of Maryland upheld the trial court’s decision to disallow the mistake of age
defense. The court based its holding on the plain meaning of the statutory rape statute, which is a
strict liability offense.

Answers to Exercises

From Section 3

1. Allen’s criminal record for burglary is not admissible to prove his predisposition to commit the crime
of purchasing contraband. The fact that Allen committed a burglary in the past does not indicate that
he is predisposed to purchase contraband. Thus Allen’s criminal record for burglary is irrelevant and
inadmissible, even though he is claiming entrapment in a jurisdiction that recognizes the subjective
entrapment defense.

CHAPTER 6 CRIMINAL DEFENSES, PART 2 169

2. The US Court of Appeals for the Sixth Circuit affirmed the district court’s denial of the petition. The
court held that the defendant did not have a constitutional right to assert entrapment and that the
rejection of the defendant’s sentencing entrapment claim was appropriate, albeit unfortunate, under
the circumstances.

3. The Court of Appeal of Florida reversed the defendant’s conviction under both theories of
entrapment. The court based its holding on the defendant’s lack of predisposition to commit the
crime and the government’s assurance that there would be no governmental interference, which
was false under the circumstances.

Answers to Law and Ethics Question

1. Whether Mitchell is put on trial, or held indefinitely because of his mental incompetency, he is
incapacitated and prevented from harming other victims. The difference is retribution. The federal
judge permitted Mitchell to be put on trial, which resulted in a conviction providing retribution.
Barzee’s sentencing also provided retribution. The state court judge allowed only for the
incapacitation of Mitchell, which did not resolve the case for the Smart family or the general public.
Whether or not retribution is ethical has been debated for centuries. However, retribution does
restore public confidence in the judicial system, which can have a positive deterrent effect.

Answers to You Be the Defense Attorney

1. In this case, the US Supreme Court upheld Arizona’s abbreviated M’Naghten statute, and also
confirmed Arizona’s constitutional right to preclude a defense based on the defendant’s inability to
form criminal intent because of a mental defect or disease. Thus you would not be able to strike
down Arizona’s insanity defense statute, and you could not introduce evidence that the defendant
lacked the capacity to form criminal intent, so you should reject the case.

2. The Washington Supreme Court upheld the trial court’s ruling that the defendant was incapable of
forming the intent to commit rape of a child, reversing the appellate court. The court based its
holding on the Washington infancy statute, which requires the prosecution to rebut a presumption
of infancy for defendants under the age of twelve by clear and convincing evidence. Thus you would
prevail on the infancy defense, and you should accept the case.

3. In this case, the trial court rejected the defendant’s involuntary intoxication claim, and the defendant
had to plead not guilty by reason of insanity. He was thereafter found guilty. On appeal, the Court
of Appeals of Colorado reversed, holding that the defendant had the right to claim intoxication and
present evidence of this claim to the trier of fact. Thus you would be able to assert intoxication as a
defense, and should accept the case.

4. The Court of Appeals of Texas upheld the trial court’s rejection of a motion to dismiss the charge
based on entrapment. The court held that friendship and numerous phone calls are not enough to
pressure an unwilling person to commit a crime. Thus you would lose on the entrapment defense
and should reject the case.

170 CRIMINAL LAW

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ENDNOTES

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Aaron Malo, Matthew P. Barach, and Joseph A. Levin, “The Temporary Insanity De-
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CHAPTER 6 CRIMINAL DEFENSES, PART 2 171

172 CRIMINAL LAW

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