Criminal Defenses Research Paper

In order for an individual to be found guilty, the prosecution must establish that the defendant had the requisite mens rea or intent and that the defendant committed the actus reus or act. The law in the Anglo-American tradition is only concerned with whether or not the accused intended to commit the act, which the law defines as a crime. The reason why a defendant intended to violate the law is not deemed relevant to the question of guilt (except where motive is part of the definition of the crime, i.e., for self-defense where one kills in order to save one’s own life and for specific intent crimes such as child sexual abuse where the touching must be for the purpose of sexual gratification). The twentieth century view of mens rea as merely legal guilt, represents a shift in thinking from earlier times when a defendant had to be shown to have both legal guilt or intent as well as moral guilt or motive. The trend toward a narrower version of mens rea may reflect a practical judgment that it is difficult to prove motives.

The criminal defenses that have developed over the past century are often predicated on the idea that an individual’s alleged criminal act was not entirely voluntary. The social science evidence presented in court, ordinarily through the testimony of expert witnesses, is designed to show that the defendant lacked the necessary intent to be held fully responsible for the offense. In some cases there may be doubt as to the legitimacy of a particular defense, and there may also be doubt as to whether the defendant properly invokes the defense. Nevertheless, whether or not it is possible to prove that an individual acted under an imperative, legal systems guarantee the right to invoke these defenses during the trial.

Through colonialism, countries with common law and civil law traditions imposed their legal systems, along with their defenses, on many parts of the world. Consequently, many, though not all, of the defenses discussed have been employed in courts across the globe. Yet, even where one finds the same defenses in different countries, the use of the defenses varies by jurisdictions.

Most of the defenses discussed are invoked in both common law and civil law types of legal systems.

1. Justification: Self Defense

Some defenses are classified as justifications, meaning that the person was correct in his or her action and should therefore not be considered culpable at all. The classic example is self-defense, under which it is justifiable for a person to use force to save his or her own life. Though self-preservation may justify the use of force, the law generally holds that a person should only use as much force as is necessary to save his or her life. Not only must there be proportionate use of force, but the situation must present an imminent danger of unlawful bodily harm. For example, some courts have held that a person has a duty to retreat where possible.

2. Excuses

When raising this second type of defense, defendants admit their action was wrong but maintain they should be excused because of the circumstances.

2.1 The Insanity Defense

One of the most important criminal defenses is the insanity defense, which is based on the proposition that a defendant with a mental defect should not be held criminally responsible. Most formulations of the insanity defense are based on either cognitive or behavioral impairment (for analysis of the German ‘biological test,’ see Silving 1967). With respect to cognitive impairments, it is considered unjust to punish a person who suffers from a mental defect that prevents him or her from comprehending the nature of his or her action. Where the insanity defense relies on a cognitive dysfunction, the famous M’Naghten test is frequently used: did the defendant know the nature and quality of the act, and if he did, did he know that what he was doing was wrong? One ambiguity with the M’Naghten test has to do with the interpretation of ‘wrong.’ When a defendant argues that he knew the act violated the law but felt that he was morally right, courts accept this insanity defense only in cases where the defendant claims to have been following a divine commandment.

Where the defendant was aware that the action was wrong but could not make his or her behavior conform to the law, this is known as a volitional dysfunction. A common version of the volitional impairment is the irresistible impulse test, and a kleptomaniac exemplifies the sort of person who would invoke the volitional insanity defense.

The insanity test has remained controversial for several reasons: (a) the fear that malingerers will avoid punishment (i.e., ‘beat the rap’); (b) the concern that poorer defendants will be less able to retain expert witnesses who are as persuasive as those provided by the state; and (c) the erroneous belief that those committed to mental institutions will be released earlier than those who are incarcerated in prisons.

The meaning of the insanity defense has evolved as new conditions are documented. For example, the medical and psychiatric communities have recognized the existence of culture-bound syndromes such as ‘running amok.’

2.2 Diminished Capacity Partial Responsibility

The diminished capacity defense may be used where a defendant cannot be considered insane according to the strict tests in effect in a given jurisdiction, but nevertheless suffers from some sort of mental abnormality. There are two variants of the diminished capacity doctrine: the ‘mens rea’ variant and the ‘partial responsibility’ variant. The essential distinction between them, is that in the mens rea variant the defendant negates one of the elements of the crime (and so he is not guilty of the crime charged), while in the partial responsibility variant, the defendant argues that his responsibility is lessened by virtue of his mental abnormality at the time of the commission of the crime (and so he deserves lesser punishment).

The rise of new versions of diminished capacity is worth noting. The defenses are frequently versions of post-traumatic stress disorders including a post partem defense, an intoxication defense, a Vietnam Veteran’s defense, and the Battered Woman defense. The automatism defense is sometimes regarded as a type of insanity defense but is different in character. Automatism refers to the behavior of an individual who acts either unconsciously or by reflex or spasm, including conditions such as somnambulism. The standard view of the automatism defense is that it does not relate to mens rea but rather to the actus reus. The notion is that a person who acts while unconscious should not be held responsible for illicit conduct because the act was not a voluntary one, not because of a failure to form the necessary intent.

2.3 Mistake Of Law And Mistake Of Fact

The traditional maxim ‘ignorance of the law is no excuse’ is followed for the most part. If a person was unaware that his or her conduct was proscribed by law, that is not an excuse. This strikes some as unfair as it is unrealistic to expect individuals to know all the laws in their justice systems, even assuming that was possible in earlier times.

By contrast, a mistake of fact can excuse otherwise criminal conduct, as long as the mistake is objectively reasonable. To determine whether mistake of fact excuses depends on the following: if the facts were as the defendant believed them to be, the act would not have been a crime; the mistake of fact excuses the behavior. Contrariwise, had the facts been as the defendant imagined still been a crime, then the mistake furnishes no excuse. In rape cases, men have invoked this defense to claim that they were mistaken as to the consent of the women.

2.4 Necessity And Duress

Some defenses are meant to show that individuals had no real choice when they committed the crimes. The defense of necessity was used, for example, in the famous nineteenth-century ‘Case of the Mignonette,’ when sailors in a dinghy without provisions devoured a cabin boy. When they were later prosecuted for murder, the argument was that either one had to die or they all would have died. Thus, the choice was one of lesser evils. Although the court rejected the defense of necessity in this case, necessity has been interpreted as both a justification and an excuse. Modern legal systems treat it as an excuse.

In contrast to necessity, which is a consequence of natural forces, duress requires that the pressure of an unlawful threat come from another human being. Defendants argue duress when they are ordered by someone else to kill and must comply in order not to be killed themselves.

2.5 Partial Excuse—Provocation

Provocation, also known as the heat of passion rule, is one of the most ancient defenses in the criminal law. Found both in common law and in most homicide statutes, the ‘provocation passion formula,’ which can reduce a murder charge to one of manslaughter, is based on the idea that a person who is provoked to kill does so without the malice aforethought required for the crime of murder, and is therefore less culpable. Often raised by jealous husbands who kill their wives, the provocation defense is the classic example of a partial excuse. Because the infidelity of a wife is considered likely to elicit a violent reaction on the part of husbands, the provocation defense is said to be ‘cross-culturally ubiquitous, perhaps universal’ (Daly and Wilson 1997). This defense is found around the world (Isedonmwen 1988, Vasdev 1968, Feltoe 1983– 1984, Stanley 1992).

If the jury is persuaded both that the defendant was provoked and that the so-called ‘objective reasonable person’ would have been provoked by the action in question, then a charge of murder is reduced to manslaughter. The defendant is not exonerated, but rather is convicted of a lesser charge. But it is sometimes difficult to prove that one’s response is that of a reasonable person, as in the case of culturally specific insults that are offensive only to members of a particular ethnic community.

2.6 The Witchcraft Defense

Another controversial defense, which has been widely used in colonial and formerly colonial settings, is the so-called witchcraft defense. Much of the literature about the defense concerns its use in African contexts (see, e.g., Aremu 1980, Chukkol 1983, Mutungi 1977), but it has also been invoked in other parts of the world (see, e.g., Clark 1980, Hobgin 1935). When invoking the defense, a defendant claims to have killed a person because that person used supernatural powers against him or his family. The defense has frequently been formulated as a version of self-defense or of insanity. Its use has often been problematic either because courts conclude that the ‘reasonable person’ would not believe in witchcraft or that a belief in witchcraft does not demonstrate insanity on the part of the defendant since sane members of the community strongly believe in witchcraft. Although the defense was largely unsuccessful in colonial settings, in the past it was considered acceptable for the state to kill witches in Europe and the US (Currie 1968).

3. Controversial Defenses

Attorneys sometimes suggest new defenses such as the brainwashing defense. When defendants invoke the brainwashing defense, they argue that they should not be held responsible because their criminal actions were a consequence of mind control. The ‘rotten social background’ defense, championed by Judge Bazelon and Professor Richard Delgado in the US, depends on the idea that individuals who grew up in the ghetto may be predisposed to use force as part of a survival strategy. As a consequence, defendants argue that they should not be held fully responsible for their illicit conduct. There is also the ‘Black rage defense’ which lawyers sometimes use when they wish to attribute their clients’ illegal activities to racism.

The cultural defense, which has received little support, is employed primarily by immigrants and refugees. The defense takes as its premise the idea that individuals were socialized to behave in particular ways, some of which may clash with the law of the new homeland. If an individual is predisposed to act in ways that violate the law, or is required by customary law to avenge a death, then the cultural defense would require that the legal system should at least take the cultural imperatives into account in determining the correct degree of culpability.

Religious defenses, which have been invoked when members of religious minorities are prosecuted for using drugs in religious ceremonies, for hunting endangered species like eagles and panthers, or for marrying more than one woman, fare no better because governments’ interests in enforcing the law apparently override the right to religious liberty.

The apparent proliferation of new criminal defenses has led some critics to condemn the ‘abuse excuse.’ Critics find this trend deplorable as they believe criminals should accept responsibility for their actions and not seek to blame others for their misconduct. The counter-argument has been that legal systems have long sought to achieve individualized justice by tailoring punishment to the particular attributes of defendants (e.g., adults are distinguished from juveniles; the sane treated differently from the insane). The acceptance of the battered woman defense also shows an acknowledgment of gender differences in the perception of, and reaction to, violence.

Whether the defenses are formally incorporated in legal systems is important to criminal defendants. If officially recognized, this means in practical terms that defendants will be entitled to present specific kinds of evidence in court. Without a formal defense, judges are more likely to exclude the evidence as irrelevant.

4. Expert Witnesses

The success of defenses often hinges on the presentation of evidence by expert witnesses. Social scientists play a crucial role in the presentation of information relevant to particular defenses, which serves to provide the context for the defendant’s action. If the defense is a novel one, there may be some question as to whether the expert satisfies the requirements for serving as an ‘expert.’ This determination usually turns on the degree to which the evidence constitutes a body of knowledge widely accepted within the relevant professional or scholarly discipline.

5. Role Of Criminal Defenses

Criminal defenses are important to guarantee that the accused only receives as much punishment as is deserved. Should the defense fail, however a judge can still mitigate the punishment during the sentencing phase of the trial. Thus, even if a defendant is convicted of a crime that is really too serious, given the nature of his or her act, the defendant may ultimately receive less punishment than one might expect. Indeed, judges sometimes hold criminals responsible, finding them technically guilty, even though they impose suspended sentences or probation. By so doing, they maintain the rule of law, the idea that justice is applied in an even-handed way to all defendants, even though in reality they mete out varying sentences.

6. Future Uses Of Criminal Defenses

The question of what defenses are acceptable emerged anew in the 1990s during the drafting of the Statute for the International Criminal Court. As efforts were underway to harmonize competing legal conceptions from the common law and the civil law, a decision had to be made as to which defenses should be part of the operating procedure of the international tribunal. Human rights advocates found disturbing the acceptance of the defense of superior orders, even under limited circumstances, a defense according to which soldiers should not be held responsible for war crimes and crimes against humanity if they were simply following the orders of their superior officers.

The question of which criminal defenses are legitimate remains an open one in most legal systems. With the advent of new medical, technological, and psycho-logical breakthroughs, it is likely that new defenses will continue to emerge on the horizon.

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