Both justification and excuse defenses are referred to in criminal law as affirmative defenses, meaning that although the defendant admits (affirms) that he or she committed the act in question, they wish to provide the court and jury with evidence showing that the circumstances surrounding their otherwise criminal actions release them from some or all criminal liability. In other words, their actions were legally justifiable or excusable. Justification defenses are important because they absolve someone of criminal liability because their actions somehow support some important social values, or in some way help support the overall society. For example, the preservation and defense of self or of others, as well as actions that protect the public, are all considered theoretically central to why there are justification defenses. Excuses, on the other hand, free the otherwise guilty defendant from some or all liability because he or she cannot be considered “responsible” or morally blameworthy. Examples of excuse defenses include insanity, duress (similar to necessity), age, and intoxication.
Those defendants who satisfy all of the necessary elements of an excuse defense will likely be acquitted (perfect defense) of the crime, while those who present cases that do not satisfy the necessary elements may result in some reduction of liability (imperfect defense), resulting in a lesser charge. Another important distinction, however, is that defendants who raise an excuse defense, such as insanity, and who are found guilty, not guilty, or not guilty by reason of insanity may be civilly committed—even if they are released of criminal liability. Additionally, depending on the defendant and the facts surrounding their case, if they are found to be legally insane and civilly committed, the length of stay in a mental institution may be longer than the prison sentence one might normally receive given the crime(s) they committed.
Importantly, in normal criminal trials, the prosecution has the “burden of production,” which means they have the duty to produce evidence and prove (burden of persuasion) to the jury that the defendant is guilty of the act(s) in question beyond a reasonable doubt. In affirmative defenses, however, this burden of production shifts to the defense (as well as the burden of persuasion), who must convince the court (by providing clear and convincing evidence/beyond a reasonable doubt) to accept evidence that the defendant’s actions were excused, therefore reducing the defendant’s criminal liability. In order to convince the court and jurors of either way of the existence of mental disease, expert witnesses can be called by both the prosecution and the defense. These expert witnesses provide evidence against/ or in support of a pattern of issues presented by the defendant, which helps establish their case.
The Insanity Defense
The insanity defense is one of the most studied and controversial of all defense strategies in criminal law. Throughout history, treatment for those people who have exhibited deviant mental behavior or madness has paralleled humanity’s understanding of the root cause of such mental disability or defect. Before the leap to scientific explanation, those who were deemed insane were thought to be possessed by evil spirits. In early civilizations it was thought that criminals could be cured of their behavior through methods such as trephination— drilling or scraping holes in the skull to “let the spirit out.” In 400 b.c.e., Hippocrates attempted to explain insanity “scientifically” through identifying the four “humors,” believing black bile, yellow bile, phlegm, and blood corresponded with temperament. He believed that insanity and disease was a result of these humors being out of balance, and in order to get them back into balance, practices such as bloodletting began growing in popularity. During the Dark Ages, there was a return to supernatural explanations and purification of the body and mind through pain or ordeal.
Much of tje understanding about how the mind works has changed during the modern era. Jean-Martin Charcot advocated the use of hypnosis and Sigmund Freud introduced the role of early life experiences and unconscious psychological causes for anxiety, among many others. The “medical model” has expanded the understanding that there are certain factors that drive people to deviant and sometimes criminal behavior, and science and modern medicine can be used to help solve the problem by addressing the needs of the person. Given people’s thoughts surrounding mental health, it is of little surprise that they excuse criminal liability for those individuals who lack free will, lack the ability to be deterred because they do not understand right from wrong, and because punishing people who have a serious mental disease by throwing them in a nontherapeutic prison setting would constitute cruel and unusual punishment.
Additionally, “insanity” is a legal term, whereas “mental illness” is a sociomedical term. The two terms are different, as the legal term insanity refers to someone who is legally shown to have a mental illness that reduces their criminal liability in a criminal trial. A person could be found mentally ill by medical standards and still be considered legally sane, just as someone who is found to be legally sane can be found mentally ill by medical standards.
There have been several tests for insanity, which include the M’Naghten (right-wrong) test and the irresistible impulse test described here, as well as the Durham rule or product test, the substantial capacity test, and the Model Penal Code standard. There has also been a shift in some states toward the adoption of changes in verdict options to include guilty but mentally ill (GBMI), which allows individuals found to be mentally ill, but not legally insane during their trial, to be given a sentence similar to the norm for whatever crime they were found to be guilty of committing.
In Rex v. M’Naghten (1884), Daniel M’Naghten had severe delusions that made him believe he had to kill then Prime Minister Robert Peel. He attempted the assassination, but failed to kill Peel; rather, he shot and killed Peel’s secretary, Edward Drummond. M’Naghten pleaded insanity and was found to be not guilty. This created quite a stir at the time and prompted the House of Lords to question the British judiciary; their response was crafted into the M’Naghten Rules in Great Britain. Importantly, this case described the M’Naghten standard, which states: “[that in order] to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused as labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” The M’Naghten test remains prevalent in British and U.S. law.
The irresistible impulse test refers to a disease of the mind that impacts a person’s ability to control their conduct or impulses. This test differs somewhat from the M’Naghten test in that it addresses the issue that even if legally insane, some people may be able to distinguish between right and wrong; however, they cannot control their emotions or their impulses to behave a certain way.
In a well-known case heard by the Alabama Supreme Court, Parsons v. State (1887), the justices outlined the rules for the irresistible impulse test: First, was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane? Second, if such be the case, did he know right from wrong, as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible. Third, if he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur: (1) if, by reason of the duress of such mental disease, he had so far lost the power to choose between right and wrong, and to avoid doing the act in question; as that his free agency was at the time destroyed; and (2) if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.
In most cases, in order for there to be a crime, there also needs to be an act (referred to as the actus reus). In order to satisfy this component of the crime, whatever act was committed must have been carried out voluntarily. Likewise, the mental aspect (referred to as mens rea) of the crime—the guilty mind—also needs to be satisfied. For example, while visiting your local bank, if someone held a gun up to your close friend or family member and demanded you rob the bank, given the dire nature of the situation, you may be driven to engage in an act that you absolutely would not do under any other circumstances. Generally speaking, the act of robbing a bank is less harmful than your loved one getting shot and possibly killed, and because the threat is serious and imminent, it may be excusable. But not all states will see duress as a valid defense for many crimes beyond minor offenses, and most do not recognize it as a valid defense for homicide.
Throughout history age has been viewed as a defense to criminal liability because youth are seen as not possessing the ability to make good decisions. In the United States most consider the age of becoming a legal adult (called the age of majority) as 18, although this may vary depending on the jurisdiction. Because of this distinction, the United States has developed a separate juvenile justice system to deal with juvenile offenders.
There are two general intoxication defenses: voluntary and involuntary intoxication. An individual who voluntarily becomes intoxicated and then commits a crime cannot use their intoxicative state to be completely released from criminal liability, and in some jurisdictions, alcohol intoxication is not recognized at all. Evidence of voluntary intoxication may be used as a mitigating factor in some instances. Involuntary intoxication may be used as a complete defense if the defense can prove that the defendant was unaware of being drugged. Therefore, because they were unaware and not responsible for becoming intoxicated in the first place, they should not be held liable for their actions.
In conclusion, there are many ways to be found guilty and convicted of a crime, but there are only a few ways to explain when and why that crime can be legally excused. To explain and prove such is to provide a legal excuse to the offense provided the facts and elements of the case. Of course, there are other legal excuses besides those listed above, such as a mistake of law or fact, entrapment, physical or mental abuse-based excuses such as battered-wife syndrome, and others such as postpartum psychosis. What all of these excuse defenses have in common is a focus on a reduction of mental capacity that impedes the defendant’s ability to have formed a guilty mind (mens rea), or in some cases the impediment has attached to the act, as for those who cannot control their impulses, or both. To punish a person who is not culpable for the crime they committed goes against some of the basic philosophies of law and punishment and therein lies the value of allowing excuse defenses in certain cases/circumstances.
- Baron, Marcia. “Justifications and Excuses.” Ohio State Journal of Criminal Law, v.2/2 (2005).
- Cipriani, Don. Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective. Farnham, UK: Ashgate, 2009.
- Gazzaniga, Michael. Who’s in Charge? Free Will and the Science of the Brain. New York: HarperCollins, 2011.
- Maher, Gerry. “Age and Criminal Responsibility.” Ohio State Journal of Criminal Law, v.2 (2005).
- West, Sara and Stephen Noffsinger. “Is This Patient Not Guilty by Reason of Insanity? How to Assess a Defendant’s Mental State at the Time of the Offense.” Current Psychiatry, v.5/8 (2006).
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