For those who have plenty of time for collateral reading, you will find a good law review article on the subject of defenses at Criminal Law Defenses:A Systematic Analysis, 82 Columbia Law Review 199-291 (1982). Be sure to take a look at the list of recent law review articles. Some of them deal directly with various defenses to criminal responsibility. You can also find some information about defenses to crime on the Internet, e.g., (1), (2).

Four out of five voices in my head say, "Go for it!"
Anyone who is crazy enough to go to a psychiatrist ought to have his head examined.

Mental illness of a person accused of crime becomes relevant with regard to five different stages of the the criminal justice process.: (1) the accused's present incompetency  to stand trial for the alleged offense, See Bushrod 1, Asst. Nine ; (2) the accused's insanity at the time of the offense, See Bushrod 1, Asst. Nine; (3) the accused's diminished capacity because mental illness negated the mental element or mens rea of the offense, See Bushrod 1, Asst. Ten; (4) the blameworthiness of the accused at the sentencing phase because of mental illness, See Bushrod 1, Asst. Three ; and (5) the accused's present competence to be executed, See Bushrod 1, Asst. Four. Here are some good links to articles that distinguish between the defenses of insanity and diminished capacity.  


Incompetency to Stand Trial: Incompetency (1) (2) to stand trial focuses on the presently existing mental state of the accused. (1 - competence of juvenile to stand trial as an adult) The prosecution is barred from trying an accused person while that person is incompetent. Typically, the person who is incompetent to stand trial will be sent to a mental hospital where an effort will be made to restore his competency. One of the issues that surrounds the restoration process is whether the accused can be forced to take medications that will make him competent to be tried. See Riggins.v. Nevada, 504 U.S. 127 (1992).  If there is no reasonable likelihood that competency can be restored, the individual is involuntarily committed civilly to a mental hospital. Incompetency to stand trial is a bar to trial until competency is restored. Look here for general information on mental health. The federal two-part inquiry re competency to stand trial is found in Dusky v. United States, 362 U.S. 402 (1960). This VIDEO discusses the issue; it is way off track in suggesting that incompetency to stand trial is in any way a defense to criminal responsibility, as insanity at the time of the offense is, rather than a procedural bar to trial based solely on the accused's mental status at the time of trial; otherwise, the video does provide some reasonably accurate general information.

Texas - Chapter 46B TCCP contains a fairly elaborate procedural process for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. In brief, there are three stages in the pretrial competency determination procedure: Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; Stage Three -the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future; based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings. Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored. Incompetency to stand trial is not a defense to criminal responsibility. The definition of incompetency to stand trial is found in Article 46B.003  TCCP. Notice that a defendant can be classified as incompetent based on either of two conditions, i.e., (1) the person does not have sufficient ability to consult with the person's lawyer with a reasonable degree of rational understanding or (2) the person does not have a rational as well as factual understanding of the proceedings against the person. Hypo:What would happen with the accused who suffers from total amnesia concerning the crime? Is she competent?

For an insight into the practical aspects of incompetency, consult the history of the unsuccessful efforts of the Houston lawyers in the Yates case to have the accused declared presently incompetent to stand trial. The Unabomber Case of Ted Kaczynski also involved defense issues of competency.  Cognitive Disabilities are discussed in this 49-page article.

Incompetency to Be Executed: Every state bars execution of the incompetent. There is no choice on the matter since the USSC decision in Ford v. Wainright, 477 U.S. 399 (1986) (1 - Wiki).  We know that the condemned prisoner has the right to present evidence and argue his incompetency to be executed before an impartial authority, independent of the executive branch of government. 

Texas - Art. 46.05 TCCP provides that a person who is incompetent to be executed may not be executed. This statute is the Texas response (11 years later) to Ford v. Wainright. The statute provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court shall deny it. Art. 46.05 defines incompetency to be executed in (h) as being unable to understand: (1) that he or she  is to be executed and that the execution is imminent and (2) the reason he or she is being executed. (This is similar to the definition that Justice Powell's concurring opinion suggested in Ford.) Notice in (k) that the condemned has the burden of proving incompetence to be executed by a preponderance of the evidence. This means the condemned must prove both (1) and (2) because the definition of incompetence to be executed is composed of two parts joined by the conjunctive "and." Also, the trial court .i.e., court of conviction,  is the adjudicating body; the statute in (b) gives the trial court continuing jurisdiction over the defendant for matters raised under Art. 46.05. (Note how this responds to the problems in Ford, where the executive branch was given the power over the competency to be executed decision.) If the trial court determines that the condemned has made a substantial showing of incompetency to be executed, the court must order at least two mental health experts to examine the condemned to determine if s/he is incompetent. These experts conduct an examination of the condemned and report back to the court, the prosecution and the defense attorney. If the trial court makes a finding that the condemned is incompetent to  be executed, it sends the appropriate documents to the court of criminal appeals for that court's decision as to whether a stay of execution should be issued. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed. [Note: Some states use a jury to determine incompetency to be executed.]

Interesting Questions Re Executing the Incompetent

  • What about execution of the mentally retarded person? (1) The USSC decision in Penry v. Lynbaugh, 492 U.S. 302 (1989) indicated that it would be permissible under the Eighth Amendment to execute a mentally retarded person; Penry was described as having a mental age of seven; he brutally raped and stabbed to death the beauty-queen sister of NFL football player Mark Mosely near Livingston, Texas. In 2001, the USSC once again dealt with Penry; in a decision reversing Penry's latest conviction, Justice O'Connor said that Texas failed to give the jury a sufficient vehicle for mitigating Penry's death sentence with evidence of childhood abuse and mental retardation. See Penry v. Johnson, 532 U.S. 782 (2001). By 2001, a number of states had voluntarily chosen by state law to bar execution of the mentally retarded. Texas was not among them. Then in 2002 the landmarks changed when the United States Supreme Court in the landmark case of Atkins v. Virginia, 536 U.S. 304 (2002) held that execution of the mentally retarded violated the cruel and unusual punishment provision of the Eighth Amendment of the U.S. Constitution.

  • One interesting and unanswered question at the USSC level is whether an incompetent person may be forced to take medication that will make him competent to be executed. One can see why the prisoner might not want to take his pills. See Washington v. Harper, 494 U.S. 210 (1990).

I think the mistake a lot of us make is believing that the state-appointed psychiatrist is our friend.
We must believe in free will. We have no choice.
37%: Percentage of felony defendants the public thinks use the insanity defense in their trials.
0.9%: Percentage of defendants who do use the insanity defense at trial (Source: Arizona Law Review)
"I wasn't right in the head. So they put me in the nervous hospital." (Statement of middle-aged Karl Childers,
a slow-witted Arkansan who, at age 12, took a saw blade to his promiscuous mother and her lover
in Billy Bob Thornton's world-class movie Sling Blade)

Defining Insanity (1) See Bushrod1, Asst. 9. Here are definitions of some tests of insanity that have been utilized over the years:

  • M'Naghten Rule (Right Wrong Test 1843): The rule (1) is "It must be proven that at the time of committing the act, the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act that he was doing, or if he did know it, that he did not know he was doing what was wrong." When we say that the accused did not know the nature and quality of his or her  act, we mean, for example that she did not comprehend that she was, for example, choking her child to death, but rather thought that she was kneading dough. Such instances of lack of knowledge are rare. Accordingly, most insanity cases focus on the second prong of the test, i.e., whether disease of the mind rendered the accused unable to know that her conduct was wrong. [Historical Note: M'Naghten assassinated Drummond, the private secretary to Prime Minister Robert Peel, in the year 143. M'Naghten mistook Drummond for Sir Robert Peel. M'Naghten suffered from an in insane delusion that Peel was intent on killing him. The rather fascinating history of this rule is recounted in United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966). With the hot breath of Queen Victoria upon them after the verdict acquitting M'Naghten, the judges were called upon to clarify the English rule of insanity. The rule pronounced by the fifteen judges of the common law courts to the House of Lords in a speech by Chief Justice Tindal was a reaffirmation of the old restricted right-wrong test. This rule became the standard approach to insanity in English and most U.S. courts.]
  • Irresistible Impulse Test (1844): Under the irresistible impulse test (1), the inquiry is whether the accused can establish that a mental defect or disease kept him from controlling his conduct (volitional), even though he knew what he was doing and knew what it was wrong. This test augments or supplements the M'Naghten Rule. In such a jurisdiction, one need only satisfy one of the rules.
  • Durham Rule (1954): Under Durham v. United States, 214 F2d 862 (D.C. Cir 1954) an accused is not criminally responsible if the "unlawful act was the product of mental disease or defect."  "Product" is defined as " if the accused would not have committed the act but for  the disease or defect." Mental disease or defect" was defined as " any abnormal condition of the mind which substantially affects mental or emotional processes and impairs behavior controls." See McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962). This radical test leaves a lot of room, many would say too much, for psychiatric influence on the insanity determination because it asks a causative question based on psychiatric of the link between the criminal act and existent mental disease or defect. Durham was replaced in D.C. first by the ALI-MPC Rule in United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) and later, in 1984, by the Federal Rule of insanity. 
  • A.L.I. Model Penal Code Rule of Mental Responsibility (1963): Under the A.L.I. test of mental responsibility the accused is found not to be criminally responsible if, as a result of mental disease or defect, he lacks substantial capacity either: (a) to appreciate the wrongfulness of his conduct (cognitive portion); or (b) to conform his conduct to the requirements of law (volitional portion).  While "mental disease or defect" is not defined Section 4.01 of the Model Penal Code states that it does not include an abnormality "manifested only by repeated criminal or otherwise anti-social conduct"; this has the effect of excluding sociopaths and psychopaths, i.e., the Antisocial Personality Disorder that applies to 75% of prison inmates and is characterized by a pattern of irresponsibility, rule breaking, and exploitation for sex, money and other primitive needs. In adolescence, this may manifest itself in Conduct Disorder characterized by truancy, fighting, destruction of property, firesetting, and cruelty to animals. Under the A.L.I. test, one sees what could be described as a refined combination of the  M'Naghten and irresistible impulse rules.
  • Federal Insanity Rule: The statutory federal insanity defense enacted by Congress in 1984 is allowed only when the defendant, as a result of severe mental disease or defect was unable to appreciate the nature and quality of he wrongfulness of his acts. This new statutory federal  rule replaced the ALI-MPC rule that had been judicially approved by every circuit. This new rule was generated by the assassination attempt on President Ronald Reagan in 1981 by John Hinckley, Jr., who successfully claimed under the ALI-MPC rule, existing in most federal circuits at that time, that he tried to kill Reagan because of an insane delusion that actress Jodie Foster  would fall in love with him if he did so (possibly a hard sell, in light of her alleged sexual orientation). (1 - Hinckley's trial) After the acquittal, a federal judge found Hinckley to be a continuing danger to himself and others. Thirty-five years after the shooting (7-27-16), a federal judge ruled that Hinckley, 61, would be allowed to leave the mental hospital and live full-time in Virginia (1).
  • Texas Insanity Rule (1983): Section 8.01 TPC, defines insanity to mean that, at the time of the conduct charged, "the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." This is an affirmative defense. The defense has the burden of producing evidence that raises the issue of insanity and must also shoulder the burden of proving the defense by a preponderance of the evidence. Prior to the current rule, Texas had a version of the ALI-MPC rule. Reacting to the Reagan shooting, the lawmakers enacted the present definition of insanity which is essentially a restricted right-wrong test, more narrow than the original M'Naghten rule. In 2006 the USSC upheld a stripped down version of the M'Naghten Rule, as exists in Texas, that drops the "unable to understand the nature and quality of his acts" ("I thought I was wringing out the dishrag instead of her neck.") prong. See Clark v. Arizona, 548 U.S. 735 (2006) which approved a defense persuasion burden of preponderance of evidence and indicated which states currently had which rule of insanity. The word wrong in Section 8.01 means "illegal" not "immoral." See Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994). See also Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008).

Consult those sources if you want to integrate a list of those definitions of insanity into your outline. Here's the original Daniel M'Naghten's 1843 case. See also these articles on the insanity defense (1 - listed above also), (2). How we define insanity is of pivotal interest to the study of criminal law. How the insanity claim is presented and the procedural framework for its presentation is more a matter of criminal procedure. We know that the law (including common law, MPC, and Texas) starts with the presumption that all people are sane. We also know that the insanity defense focuses on the time of the crime. It excuses the accused who is insane at the time of the offense from any criminal responsibility. Among the reasons that most jurisdictions recognize the insanity defense is that the person who is insane has lost the capacity of human choice (free will) to engage in crime as a result of mental disease or defect. Such a person is viewed as mentally ill (sick) and deserving of treatment, often in a locked-down mental hospital, rather than punishment. 

Texas - How does insanity work : The definition of insanity as an affirmative (Burden of production and persuasion on defendant by a preponderance of evidence) defense to criminal responsibility is found in Section 8.01 TPC. Note that affirmative defenses are different from defenses in Texas, insofar as the burden of proof. Affirmative defenses require the defense to bear not only the burden of production, but also the burden of persuasion by a preponderance of the evidence. See Section 2.04 TPC describing "affirmative defenses"  vis a vis Section 2.03 TPC which defines "defenses."  In one instance the prosecution has the burden of disproving insanity beyond a reasonable doubt; that occurs when there is a prior undissolved judgment of insanity or lunacy existing against the defendant at the time of the offense. See Riley v. State, 830 S.W.2d 584 (Tex.Crim. App. 1992). [Note: This would be one hurdle Texas prosecutors would have to jump should they ever consider prosecuting Andrea Pia Yates for the drowning deaths of the two of her five children who were not the subject of the previous prosecution and acquittal by reason of insanity. Be aware that Ms. Yates first conviction and life sentence for drowning three of her children was reversed on January 7, 2005, by the First Court of Appeals in Houston, Texas due to the use of false testimony by a prosecution expert. On retrial, Ms. Yates was acquitted of those three deaths by reason of insanity. (1 - Yates confession) (2 - video) Query: Suppose Yates' original conviction had been upheld. Would it seem likely that a federal court might one day intercede in a federal habeas corpus action and order her state court conviction to be amended to a finding of not guilty by reason of insanity? Does that sound crazy? See Perez v. Cain, 529 F.3d 588 (5th Cir. 2008) holding that the evidence was insufficient for a rational jury to find that the accused was sane.]

Insanity is a legal term, not a medical term. Medical personnel speak of "mental illness" and "mental disease or defect." Insanity is a legal term that is used as a label to describe a status that excuses a person from criminal responsibility. Insanity focuses on the time of the alleged criminal offense, unlike competency that focuses on the time of trial or the time of execution. As you examine Section 8.01 TPC, notice that it requires a causal connection between the severe mental disease or defect and the conduct charged. The law also requires that the defendant's mental condition must cause the defendant to be unable to know that his conduct was wrong. We know that the concept of "wrong" in Texas does not mean wrong according to the defendant's own subjective moral view. It is a bit unclear as to whether "wrong" means wrong according to the moral standards of society as a whole or simply illegal, i.e., against the law. See Bigby v. State, 892 S.W.2d 864 (Tex. Crim . App. 1994) for an example of a poorly written opinion which is vague on this point, but seems to intimate that wrong may simply mean "illegal." (This ties in with the issue in Colorado case of People v. Serravo, 823 P.2d 128 (Colo.1992) in which it was recognized that a psychotic person may know conduct is illegal but because of the mental illness not know that it is wrong according to society's moral standards.) In most cases, it may not make much practical difference, since most defendants who know their conduct is illegal will also know it violates the moral standards of society. [Note: Related to this issue is the question of the so-called "Deific Decree (1), " where the accused thinks that God is ordering him to commit the offense in question and that God's orders overrule the written law and the morals of society as a whole. Some jurisdictions recognize this Deific Decree hallucination as an exception to the general rule that "wrong" is not to be judged from the defendant's perspective. Thus, in these jurisdictions, if one can connect the conduct to the metal disease or defect from which the Deific Decree emanated, the actor will be considered as not knowing that his conduct was wrong, and thus will still qualify to claim the insanity defense. See United States v. Segna, 555 F.2d 226 (9th Cir. 1977).  But see United States v. Ewing, 494 F.3d 607 (7th Cir. 2007). I am not aware of a Texas decision on the issue of the "Deific Decree." Would it have made the case easier for the defense in the Yates case if Ms. Andrea Yates had maintained from the get-go that God ordered her to sacrifice her children? Instead she apparently said that her homicidal actions were to keep her children from the devil.]

Mental illness that does not prevent the defendant from knowing that his conduct is wrong does not raise the issue of insanity. Low intelligence, mental retardation, goofy personality, drug addiction, alcoholism, etc. are not equivalent to insanity, though they might be relevant evidence to such a claim. Remember that in Texas the mental disease or defect must qualify as severe. One would think that mental illness characterized by severe delusional behavior, such as paranoid schizophrenia, would qualify. Perhaps, postpartum psychosis would also qualify in Texas.  Mental illnesses such as multiple personality disorders, obsessive-compulsive disorders, post-traumatic stress disorder, etc. are sometimes relied upon in various states. Personality disorders, including sociopathic (psychopathic) persons whose disorders are characterized by anti-social conduct usually don't qualify as a mental disease or defect, even under the ALI-MPC  rule, See Section 4.01 MPC.

Texas law sets out an elaborate procedure surrounding the claim of insanity and  the effect of a finding that the accused was not guilty by reason of insanity. See Chapter 46 CCP  and Chapter 46C CCP. Chapter 46B CCP provides for the court appointment of disinterested experts to examine the defendant who will claim insanity. Written reports of the examinations are filed with the court with copies to the defense and prosecution. There is also a procedure in Chapter 46B  for the involuntary commitment to a mental institution of those found NGBRI. (Note: My 1L criminal law students are not responsible for knowing any of this this procedure. REM) The verdict of NGBRI is actually equivalent to a finding of guilty by insane. Why? Because, to find the defendant insane the jury must first have found beyond a reasonable doubt that s/he committed the offense. Insanity is one of those "confession and avoidance" defenses, where the accused says, "Yes I did it but..." Insanity doesn't mean that the accused didn't do the crime. Indeed, insanity is only available as an excuse when the accused did do the crime.

Pleading insanity in Texas by giving pretrial notice, also, that insanity is the only defense in Texas that has to be pled, in the sense that the defense is required to provide written pretrial notice to the court and the prosecution of its intent to rely on the insanity defense. See Art. 46C.051  and Art. 46C.052 CCP. In the absence of a timely notice, the trial court is empowered to prevent evidence raising the insanity defense, unless the defense shows good cause for failing to provide the required notice. Obviously, insanity pleas typically involve the use of expert testimony and often center around a "battle of experts." See Below.  When the accused is indigent, the law entitles the defendant to have taxpayer funds provided for the employment of an expert, e.g., psychologists or psychiatrists. See DeFreece v. State, 848 S.W.2d 150 (Tex.Crim. App. 1993). See also Art. 26.05(d)& (h) TCCP. In the last analysis, the jury decides whether the accused was insane under the prevailing definition of insanity. In most cases, the insanity defense is unsuccessful. (Yates was an exception.) For some interesting easy reading re insanity in general  click here.

Dueling Experts in Insanity Cases: [Before you read about experts, take a look at the human brain. Some folks say that the most uncharted and unexplored expanse in the universe is between our ears.] Every insanity defense (Note: There are precious few claims of insanity as a defense, typically in bizarre murder cases, and most often those are unsuccessful.) will involve expert testimony from forensic psychologists and/or forensic psychiatrists or other behavioral scientists about the nature of the accused's mental illness, if any,  and the applicability of the illness (disease or detect) to the prevailing legal definition of insanity in the jurisdiction. The prosecution is allowed to have its expert conduct a compulsory mental status examination of the accused in cases involving issues of incompetency and/or claims of insanity. See. Estelle v. Smith, 451 U.S. 454 (1981) rejecting a Fifth Amendment self-incrimination privilege claim. Each side will have its "hired guns," and at trial these experts will come to diametrically opposed conclusions as to whether the accused was insane at the time of the offense - thus, the battle of the experts. The psychiatrists ("shrinks" or "headshrinkers") (1 - negative view of psychiatry), (2 - Szasz on abolishing the insanity defense) (3 - forensic psychiatry resources) will rely on the Diagnostic and Statistical Manual of Mental Disorders (DSM5) published by the the American Psychiatric Association, now in its 5th edition (2013), for their definitions of mental diseases and defects. Using this text that describes mental disorders by symptoms, the experts will indicate which of the forms of psychopathology qualify as a "mental disease or defect" under the insanity definition, be it M'Naghten, ALI-MPC, or some variation. [Note: If you are criminal defense lawyer, you may need to fork over $120 for a paperback version of the new DSM5.] 

Best Chance for an Insanity Defense to Prevail: The defense's best chance for an insanity defense comes when the crime is in direct response to psychotic symptoms (1), (2), (3), (4), (5), (6 - great for definitions), (7) (8 - Evolution of the Insanity Plea), (9 - Frontline's "A Crime of Insanity"). For example, most experts will agree that psychosis (with symptoms such as delusions, hallucinations and thought disorders), mental retardation, and other serious brain dysfunctions will qualify as a "mental disease or defect" for purposes of insanity. A number of specific psychotic illnesses seem to qualify with most experts, e.g.,  schizophrenia (the most severe form of mental illness, characterized by delusions, hallucinations and thought disorders), schizophreniform disorder (like schizophrenia but of shorter duration), schizoaffective disorder (involving depression or mania or when both occur, the so-called "bipolar disorder"), brief psychotic disorder (This one might be thought of as "temporary insanity" in the sense that it is of relatively short duration, e.g., weeks, but involves the symptoms of schizophrenia.), delusional disorders (These folks may appear normal until the delusion appears; one example is erotomania where the afflicted person has a delusion without hallucinations, e.g., the "celebrity stalker" who believes the targeted celebrity is in love with them; another example is the paranoid delusion), etc. The experts tell us that psychotic depression can express itself when where life becomes so highly debilitating that the sufferer quits eating and bathing and stays in bed and ,perhaps, hears voices reminding him of his unworthiness as a human being. They tell us that those in the grip of mania may become grandiose and extreme risk-takers because they feel bullet-proof. Brief periods of psychosis may occur when a chronic alcoholic is in the grips of delirium tremens. Of course, the prosecution experts may be quick to remind jurors that some people with psychoses have periods of remission where their symptoms don't manifest themselves.  

There is also the dementia and misperception of reality that arises from mental retardation and diseases or defects such as Alzheimer's, AIDS dementia, toxic substances, or from mini-strokes. With brain defects there may be demonstrable organic brain damage that will show up on an MRI Scan. This can be as a result of infectious disease, e.g. AIDS, syphilis,etc., or cerebral vascular accident ("stroke" to us) or degenerative dementia, e.g., Alzheimer's disease, or brain damage from a toxic substance, e.g., alcohol is the most corrosive, or head injury or neurodevelopmental disorders. 

If the accused does suffer from a psychosis,mental retardation, or serious brain dysfunction, we next have to figure out whether s/he was in the grip of the illness when the crime was committed. Even then, we still have to decide if there is a causal relationship between the mental disease or defect and the otherwise criminal act. The legal issue is not whether the subject was mentally ill when s/he committed the otherwise criminal act, but rather whether as a result of the mental disease or defect, s/he met the legal test of insanity, e.g., did not know right from wrong. A person can have one of these severe mental disorders and still not qualify for the insanity defense because there is insufficient evidence of a causal connection between the illness and the crime. In such cases, the crime and the mental disease or defect are viewed by the expert as merely coincidental to one another.

The experts will tell us that certain mental illness doesn't qualify for the insanity defense. It depends on the definition of insanity in the jurisdiction, but personality disorders, e.g., the psychopathic personality, the asocial personality, the dependant personality, don't usually qualify. Neither does paraphilia (sexual perversion, e.g., sex with children, sex with corpses, etc. ).or substance related disorders flowing from the use of drugs such as cocaine or amphetamines (Note: Psychotic behavior flowing from the use of crystal methamphetamine is one of the big issues that will be confronting the trial courts in years to come when dealing with the insanity defense; apparently, some people who take crystal meth stay psychotic for a long period, months maybe years, after ingestion.). Anxiety disorders, e.g. post-traumatic-stress disorder (PTSD) and obsessive-compulsive disorder ( "I did it to gratify a compulsive desire.") normally don't qualify for an insanity claim, although the battered-spouse and battered-child defense usually involve a defendant who suffers from PTSD. Impulse control disorders ( "I couldn't help myself.") normally don't qualify, but might work into a claim or insanity based upon irresistible impulse, if it is part of the jurisdiction's insanity definition. Neither do so-called factitious disorders, e.g., Munchausen's Syndrome By Proxy (1- Florida case). Claims of insanity based on cultural environment, bad parents, dysfunctional family life, trivial head injuries ("Earl fell out of tree when he was six and was never the same."), and alcoholic blackout ("I drank a bottle of Jack Daniels and blacked out." - This one might, however, work into a defense of "unconsciousness.") don't get very far. They are typically considered as fabricated mental disease.

The Expert's Effort: How do the experts go about making their psychiatric or psychological assessment of the accused's mental state at the time of the offense? The expert reviews the extant records of the case, e.g., the discovery, the crime scene reports, the offense reports, etc. Why? Because the presence or absence of mental illness and its relationship to the accused knowledge of the wrongness of the crime can be revealed by behavior of the accused before, during, and after the offense. The expert visits the crime scene. The expert interviews the complainant and witnesses. The expert inspects the physical evidence. The expert conducts an examination of the accused, typically about two days for a total of 6-10 hours face-to-face. The expert may conduct or order neuropsychological tests and/or biomedical tests. Psychological tests may be given. The  most widely used  is probably the Minnesota  Multi-Phasic Personality Inventory (MMPI) with  567 True/False questions, some of which are designed to catch malingerers (those trying to fake mental illness). The MMPI is also designed to catch people who are pretending to be better off mentally than they really are. [Note: Some police departments give this to people applying to be cops.] Some defense experts may not give the MMPI because the results may be indisputable, e.g., the defendant is a real mean person but not crazy!. Lawyers who try to obtain copies of the psychological tests used on their clients by the opposition's experts may run into trade secrets barriers. [Personal Note: Many years ago I wrote a book for Foundation Press called Scientific Evidence in Criminal Cases; when I wrote that book there were two tests, i.e., the Rorschach Ink Blot Test involving ten cards, some colored,  that was supposed to be revealing of personality and intelligence when shown to a subject and explained by him, and the Thematic Apperception Test based on the subject telling the interviewer stories.. Both tests were touted by psychiatrists and psychologists in the '60's, and consequently by me in the book., as useful diagnostic tools. Today's experts eschew both of these tests as scientifically bankrupt. There is probably enough literature  discounting these tests to keep them out of evidence under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). If not, the treatises could be used to impeach the validity of the tests in cross-examination. Just shows to go you!] There are ways of looking into the accused's brain without cracking it open. CAT (Computerized Axial Tomography) Scans or MRI (Nuclear Magnetic Resonance Imaging) Scans may be conducted and the results examined for the presence or absence of structural defects in the brain. MRI's are generally recognized as providing a far better basis for diagnoses, but CAT Scans are cheaper and easier to administer.

The expert's face-to-face mental status examination (MSE) of the accused should be comprehensive. This means that the expert should be thoroughly prepared, knowing as much about the case as possible before talking with the accused. The mental status exam should be videotaped from start to finish. The accused should be told why the exam is taking place, that the exam is not confidential, and that it is being videotaped. The expert should take a life history, e.g., a "getting to know all about you" set of questions that explore the accused's background, schooling , family, etc. An IQ test should be given. [ Note: IQ is reflected in numbers, i.e. above 130: very superior; 120-129: superior; 110-119: high average; 90-109: average; 80-89: low average; 70-79: borderline; and 69 and below: mentally retarded.] The accused is then asked by the forensic examiner to give his account of the offense, e.g., "Take me through the whole story. Earl."; the expert does not interrupt with questions during the accused's narrative. After the accused has told his story, the expert will ask clarifying questions. Then the expert will confront the accused with inconsistencies in his story and note the reactions. Throughout the exam the expert is monitoring the accused's orientation, level of consciousness, emotion (mood and affect), suicidal-homicidal axis, insight, judgment, memory, and intellect. Memory can be tested by simple tests, e.g,  the examiner asking the accused to remember three words and then coming back 20 minutes later and asking him to recall the three words. The accused's vocabulary will also aid the examiner in assessing his intellect. Experts generally agree that "reality testing" is the "meat and potatoes" of the mental status examination (MSE). Reality testing focuses on the content, form, and logic of the accused's thoughts, as well as his perceptual accuracy, e.g., the presence or absence of delusions and/or hallucinations.  

Analytic Steps to a Diagnosis: How does the expert arrive at a conclusion regarding the insanity issue? The expert organizes the facts from the life history of the accused together with the detailed facts of the offense, including what the accused did before, during, and after the event. Then the expert compares the accused's statements with that of all the other witnesses and analyzes the results of all the tests that have been run on the accused. Then the expert reconstructs the accused's thoughts and feelings at the time of the offense and compares those feelings with the legal test of insanity. The expert then arrives at a conclusion (expert opinion) as to whether the accused was insane at the time of the offense. The expert's report is then written up and delivered to the attorney who employed the expert.


Defining Diminished Capacity (1) (2 - Good Bibliography) See Bushrod1, Asst. 10. Dressler's UCL7th devotes an entire chapter to the somewhat unclear issue of diminished capacity. Dressler points out that there are two concepts - diminished capacity, an insufficiency of the evidence reasonable doubt claim that allows the accused to introduce evidence of abnormal mental condition to negate the existence of an element of the crime, e.g., usually the mens rea element, and the far less popular concept of partial responsibility that allows the accused, typically in criminal homicide cases, to introduce evidence of mental handicap to lessen the level of the offense, e.g., from murder to voluntary manslaughter. Some states refuse to allow expert testimony relating to the incapacity of the accused to form requisite specific intent. See State v. Wilcox, 436 N.E. 523 (Ohio 1982) holding that a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime. This practice has been okayed by the USSC in Clark v. Arizona, 548 U.S. 735 (2006)

Federal -  The federal law rejects the diminished capacity defense. See the federal definition of insanity in 18 U.S.C.A. Section 17 (Insanity Defense Reform Act of 1984) which in part provides "Mental disease or defect does not otherwise constitute a defense." See also Rule 704 FRE (1 - Wiki) stating Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

MPC - Diminished Capacity Look at the ALI-MPC rule in Section 4.02 MPC for an example of the former type of diminished capacity in a very broadly defined rule stating "Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense." Note also that that the manslaughter statute, Section 210.3 (1)(b) MPC, states that manslaughter occurs when a homicide which would otherwise be murder is committed under the influence of extreme mental disturbance for which there is reasonable explanation or excuse. Dressler's UCL6th says that about 15 states adhere to the MPC rule approach to diminished capacity. Some states take a stricter approach and completely reject the concept of diminished capacity. Some other states stake out a position between the MPC rule and total rejection; some of these states allow diminished capacity to negate specific intent of specific intent crimes.

Texas - Diminished Capacity:  Texas does not recognize diminished capacity as an affirmative defense, i.e., a lesser form of insanity. See Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005). Thus, a defendant is not allowed to argue that as a result of mental illness he lacks capacity to form the requisite state of mind, i.e., that s/he is absolutely incapable of ever intentionally or knowingly performing an act. On the other hand, the diminished capacity doctrine as simply a failure -of-proof claim that the prosecution failed to prove that the defendant had the required state of mind at the time of the offense is permitted. To counter the prosecution's evidence of the culpable state of mind, the defense is allowed to present evidence that the defendant has mental or physical impairments or abnormalities and that some of his abilities are lessened in comparison to someone without such problems. Thus, the general rule here in Texas is now that lay and expert evidence of mental disease or defect that directly rebuts a particular mens rea necessary for the charged offense is relevant and admissible unless excluded under a specific evidentiary rule such as the balancing test of Rule 403 TRE. See the aggravated assault case of Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008) holding that, unless otherwise barred by evidentiary rules, expert evidence that would explain Ruffin's mental disease and when and how his paranoid delusions may distort auditory and visual perceptions was admissible as it related to whether Ruffin intended to shoot at police officers. The court in Ruffin said "We, like the dissenting justices in Clark, have confidence that our Texas judges and juries are sufficiently sophisticated to evaluate expert mental-disease testimony in the context of rebutting mens rea just as they are in evaluating an insanity or mental-retardation claim. See Clark v. Arizona, 548 U.S. 735 (2006). See also Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) (concurring opinion distinguishing “diminished capacity” as an affirmative defense from evidence that rebuts mens rea and further distinguishing “diminished capacity” from “diminished responsibility”; noting that “[m]ost of the state and federal courts recognize that evidence of diminished capacity is admissible to negate mental state”.  Hypo: Suppose you have a Texas shoplifting case where the accused's specific intent to steal must be shown as an element of the crime. Could you introduce evidence that the defendant suffered from an obsessive-compulsive mental disorder (probably not a severe mental disease or defect that would prevent her knowing her conduct was "wrong" in the sense of "illegal") that made her powerless to resist the urge to shoplift. Would this be a case for a "diminished capacity doctrine" failure-of-proof defense claim where the defense could present expert and lay evidence that the in fact did not have the required state of mind that the prosecution must prove beyond a reasonable doubt? Barring exclusion under some evidentiary rule such as Rule 403 TRE, the answer would appear to be "yes."

[Note: The citizens of California in 1982 abolished the partial responsibility form of diminished capacity across the board with Proposition 8 in the aftermath of the manslaughter verdict in the case of Dan White for the killing of San Francisco Mayor Moscone and Supervisor Harvey Milk. California in the wake of the abolition of partial responsibility held that evidence of mental illness shall not be admitted to show or negate the defendant's capacity to form a culpable mental state, e.g., intent, motive , knowledge, or any other mental state required for commission of the offense, but it is admissible solely on the issue of whether or not the accused actually formed a required specific intent when a specific intent crime is charged, i.e., evidence of mental illness is admissible to show that in fact the defendant did not have the mental state required by the definition of the crime. So while evidence of mental problems is inadmissible in California to show that a defendant lacked the capacity to form the requisite mental state, such evidence is admissible to show that the defendant actually lacked the requisite mental state. See People v. Saille, 820 P.2d 588 (1991) stating that while the legislature can limit the mental elements included in the statutory definition of a crime and thereby curtail use of mens rea defenses, if a crime requires particular mental state, the defendant cannot may not be denied the opportunity to prove that he did not possess that mental state.]


The defense of infancy is based on the actor's chronological age at the time of the criminal act. The child may commit an otherwise act with a culpable mental state, but because we do not regard him as responsible, his act, which might be a serious crime if committed by an adult, is non-criminal. Common law provides that the child under the age of seven (7) is conclusively presumed incapable of being responsible, i.e., a child under seven cannot be guilty of a crime. Children seven (7) through thirteen (13) are rebuttably presumed incapable of being criminally responsible, i.e., between the ages of seven and thirteen, a child is rebuttably presumed incapable of forming a culpable mental state. Persons fourteen (14) and over are treated as criminally responsible adults. [Note: Liberal transfer laws of young offenders from juvenile courts to criminal court exist in many states, e.g., Vermont, Indiana, Colorado, Missouri, Georgia, New Hampshire, North Carolina, Alabama, Florida, Idaho, Iowa, Nevada, New Jersey. In some states, e.g., Alaska, Delaware, Rhode Island and Washington there is no age restriction for transfer of a juvenile to criminal court. Read this free 134-page copy of Michele Deitch, et al., From Time Out to Hard Time - Young Children in the Adult Criminal Justice System Austin, TX: The University of Texas at Austin, LBJ School of Public Affairs (2009) ] The Model Penal Code, Section 4.10, provides the defense of immaturity. The basic rule is that one who was less than sixteen (16) at the time of the offense is not triable or convictable for the offense. Those who were sixteen or seventeen (less than eighteen) at the time of the offense are not triable or convictable in criminal court unless the juvenile court has waived jurisdiction over them or unless the juvenile court has no jurisdiction over them. The Texas law on infancy is much more complicated because it is associated with the juvenile law. The juvenile law, Title Three of the Texas Family Code, was totally redrafted in 1995. Numerous changes have been made since then and are not analyzed here. See Morales v. Turman, 326 F. Supp. 377  (E.D.Tex 1971) See also Morales in the USSC and 5th Circuit. Section 8.07 TPC deals with "Age Affecting Criminal Responsibility." (1-juvenile) (2-2016 Texas Juvenile Justice Handbook - good explanation of the current juvenile justice system, including trial of juveniles for adult crime.)


Duress, like insanity, is one of those confession and avoidance defenses. The law of duress recognizes that sometimes we may have to walk with the devil to get across the bridge. Duress doesn't negate an element of the crime, but rather involves an additional consideration, i.e., that the defendant was forced to commit the crime. This is the legal version of the younger child's proverbial excuse - "Mom, he made me do it." Obviously, in cases of duress, the defendant has an additional motive to commit the crime because of the threat or use of force against himself or another by a third party. In effect, the defendant says, "I was coerced into committing the crime because I did not want to be hurt or have another hurt if I didn't commit the crime." Indeed, the threat of harm to himself or another may be the underlying reason why the accused committed the offense. But motive, in the sense of a reason why, is typically not an element of an offense that the prosecution must prove. Duress is typically viewed as an excuse, rather than a justification for crime.

HYPO: Suppose a case where a witness commits perjury because of a threat of serious injury to him or his family in the future if he doesn't do so. How "imminent" is a threat to hurt a person in the future if the person doesn't commit perjury. This is a conditional threat of future injury. If we are going to require that the person threatened go to the authorities, do we need to evaluate the ability of the authorities to protect the witness from harm, i.e., to vouchsafe his safety? If the witness subjectively and in good faith believes he or his family will be seriously injured, does it matter whether that belief is an objectively reasonable belief? Think about the case of Ms. Carradine, the Chicago mother who was threatened with serious bodily harm  by the street gang if she testified. Was it fair to hold her in jail for a lengthy period for contempt because, out of fear of harm to herself and her children, she wouldn't testify?

Comparative information re duress:  The MPC (Section 2.09), TPC (Section 8.05 - affirmative - BOP on D by a POE - defense) and the c/l adhere to the requirement that the threat that constitutes duress be a threat of personal injury rather than a threat of property damage.  Note that the MPC describes "a threat of unlawful force" which would apparently include minor physical damage. Notice that the TPC seems to scale down the threat that will qualify according to whether the person is be coerced to commit a felony (threat of "imminent" death or serious bodily injury to himself or another) or a misdemeanor (by force or threat of force). The MPC, like the TPC but unlike the c/l, appears to extend the defense of duress to encompass intentional or knowing homicides. Also, the MPC does not appear to limit the threat to "imminent" harm. Instead of the rigid requirement of "imminent" threat, the MPC takes the so-called modern approach and instead asks whether a person of reasonably firm resolve would be able to resist the threatened harm. The TPC requires that the threat be imminent when the crime committed is a felony, but apparently not when it is a misdemeanor. With regard to threats to harm third parties, the MPC and TPC do not require that the third person be a relative or acquaintance of the accused (defendant). Like the c/l, the MPC and the TPC don't allow the defendant (accused) to claim the defense if he (intentionally, knowingly, or recklessly - TPC only) recklessly put himself in the position where it was probable that he would be subjected to compulsion or coercion to commit the crime. (Under MPC Section 2.09, duress is also unavailable in a negligence crime when the defendant negligently places himself in such a position. In Texas and the c/l, it would seem that the defendant who negligently places himself in such a position would be able to claim the defense of duress.) Notice that the MPC, in Section 2.09 (4), makes it implicitly clear that the limitations on the duress defense do not apply to the necessity defense. For a recent case on burden of proof in federal cases involving duress, see Dixon v. United States, 548 U.S. 1 (2006).  See Bushrod 2, Asst. 11.

Duress differs from brainwashing, in the sense that the brainwashed person could operate apart from the brainwasher. The brainwashed person might be under the control of the brainwasher, but no imminent threat of force would have to be present. Here's an easy-to-read explanation of the famous Patty Hearst (1), (2) case that implicated aspects duress and brainwashing. In more recent times, the vicious, scofflaw "D.C. sniper," Lee Boyd Malvo, tried unsuccessfully to sell a brainwashing claim.


Voltaire said ,"It is forbidden to kill, therefore, all murderers are punished, unless they kill in large numbers and to the sound of trumpets." Killing the enemy in wartime is deemed justifiable homicide. See Section 9.21(c) TPC. Forces in wartime are structured so that soldiers (combatants) take orders from their superior officers. Yet, the international law of war seems to require that the subordinate refuse to obey a clearly "illegal" order, e.g., an order from his superior officer to shoot an innocent civilian, even if the refusal places the subordinate's own life, e.g., from actions of the superior officer, in jeopardy. (1), (2), (3) (Google "Superior Orders in National and International Law" by Leslie Green, "Military Obedience" by Nico Keijzer, "The Nuremberg Trial and International Law" by  George Ginsburgs) See also Herbert Wechsler, The Issues of the Nuremberg Trial, 62 Pol. Sci.Q. 11 (1947). This is a very dicey issue, particularly when the victors try the vanquished or a low-ranking military officer runs the risk of being used as a scapegoat for a substantial number of atrocities in an unpopular war. For a fascinating case of a 24 year-old lieutenant (William "Rusty" Calley) who was tried for overseeing and participating in the My Lai Massacre of the non-combatant men, women, and children inhabiting a village, My Lai, during the Vietnam War, see this TruTv account. See also United States of America  v. William Calley, Jr.  It has been said : "When a man has done something he is ashamed of, he usually says that it was his duty." Would you agree that "during war, laws are silent"? Is war a bit like the proverbial "open boat" in Dudley & Stephenson and Holmes?  For those with a bent toward the military, here's a useful site -  Court of Appeals for Armed Forces. The Uniform Code of Military Justice is at 10 U.S.C. 801 et seq. See also Commissions and  Armed Forces -Title 10 USC. See Links. In the years following the US invasion of Iraq in 2003, some court martials flowed out of the treatment by American "coalition" forces of Iraqi prisoners during their incarceration during operation "Enduring Freedom."  One should wonder how far up the chain of command approval of psychological and physical torture went. Perhaps to the Oval Office or the Office of the Vice-President?  


The necessity defense exists in American c/l, the MPC Section 3.02, and the TPC Section 9.22. [Note: The English common law is more problematical - with statements like "Historically the courts of England have refused to accept that there could be a distinctive defense of necessity at common law" contrasted with "But other cases say that there is a common law principle of necessity which may justify action which would otherwise be unlawful." UCL, Section 22.02, says simply, "Necessity may not have been a common law defense in England." We'll leave it there.]  With necessity, one must balance the harm the defendant (D) causes with the harm his conduct avoids. If the harm D causes is less than would have been inflicted had D not acted, we may choose to look at the scenario as a net gain to society, and thus view the action as justifiable rather than simply excusable. Notice, for example, that Texas places the statutory necessity defense in Chapter 9 of the TPC, a chapter reserved for justifiable use of force and one in which, under Section 9.02 TPC, all justifications are treated as defenses (D has the the burden of production, but, once he meets that burden, the prosecution must assume the burden of persuasion and disprove the defense, e.g., necessity, beyond any and all reasonable doubts. Here are some Texas cases on the necessity defense: (1 - admitting the conduct and the requisite mental state is required but mental state may be inferred even if the defens=dant denies it), (2- right to an instruction on necessity and self-defense if each is raised by the evidence), (3 - indicating that the accused must admit the offense, i.e., the conduct and the requisite mental state, to qualify for the necessity defense)  

In the early American common law necessity decisions the threat of (imminent) injury to person or property has to emanate or stem from natural (environmental) forces, e.g., the heavy seas that threaten to capsize the open boat, the snowstorm that forces a hiker to break into a cabin for shelter and food,  and not from a human being. (Remember that duress always involves a human threat.) This environmental restriction has been removed many jurisdictions, e.g., the MPC and TPC. But a few jurisdictions, e.g., United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), still restrict necessity to situations where the forces of nature and not another person threaten the particular harm. It may not make a lot of sense to restrict the necessity scenario to threatening acts of nature; but remember that for necessity to apply, the "choice (balance)-of evils" test must always favor the conduct of D. Note that the necessity defense could apply when action is taken against a person who is not a wrongdoer, e.g., a doctor takes the life of an unborn fetus to save the life of the mother or a doctor separates conjoined twins (1-2-3 -Jodie and Mary) where one will necessarily die but without the separation both will die. Notice also that the threat in cases of necessity can be to person or property, unlike duress (coercion), where the threat has to be to the person and not to property. (1- history), (2 - hypos), (3 - abolition), (4 - medical).

Although the English Dudley and Stephens case (Wiki -the 4 men adrift at sea case) indicates that English c/l didn't permit a necessity claim in the case of the intentional homicide of an innocent, the American life-boat case of United States v. Holmes (the overweighted lifeboat foundering in rough seas) suggested that if the victims were chosen by lot, a necessity claim might be recognized for intentional or knowing  homicide It's clear that the MPC and TPC necessity defenses do not preclude such killings. For those who have time and inclination, read Professor Lon Fuller's classic The Case of the Speluncean Explorers in which five judges determine the applicable criminal law for thirteen spelunkers who killed and ate a comrade while trapped in a cave and facing possible death from starvation.  See Recent New and Scholarship. [Personal Note: For a good read about an open boat adrift from a mother ship sunk by a whale, read about the Essex.]

At American common law, note that, as with c/l duress, if D negligently or recklessly creates the conditions that cause his dilemma, the c/l denied the c/l necessity defense. Of course, each case will have to be examined to determine whether D is sufficiently at fault for placing himself in the position where he had to make a choice of evils. 

The MPC, Section 3.02, calls its version of necessity "justification" or "choice of evils." Texas, Section 9.22 TPC, refers to the defense as "necessity." Both defenses are based on a lesser of two evils calculus. The MPC rejects some of the common law limitations. For example, the MPC, unlike the TPC, doesn't expressly require that the conduct is immediately necessary or that the harm be imminent. Consider how long a firefighter would have to wait before setting fire to property to create a firebreak. Texas would seem to require that he wait to the last moment; whereas, the MPC might justify the action earlier in time. Like the TPC, the MPC doesn't preclude human-caused harm; harm threatened by humans and/or harm threatened by non-human elements of nature are both included in the ambit of the justification (necessity) defense. Also, like the TPC, the MPC does not restrict the justification (necessity) defense to only those threats that rise to the level of serious bodily injury or death. Under the MPC, Section 3.02 (2), one could apparently raise the justification defense in crimes where the mens rea is purposefully or knowingly, even when the actor has acted recklessly or negligently either in bringing about the dilemma where a choice of evils becomes necessary or in appraising the necessity for his conduct. 

We know, under Section 2.09 MPC, that duress is totally unavailable if D recklessly places himself in a situation in which it was probable that he would be subjected to duress, e.g., threatened or coerced by force. But the MPC justification or choice of evils (necessity) defense is still available in such a situation when the mens rea is intentionally of purposefully. HYPO: D joins a criminal street gang, disregarding the substantial and unjustifiable risk that membership in the gang placed him in the position where it was probable  that he would be forced to intentionally kill (assassinate) a rival gang member V; under threat of death to himself and his entire family of six unless he kills V, D intentionally kills V; D actually believed that killing V was necessary to avoid the death of the six members of his family and himself. D is charged with V's murder. Would D have a duress defense under the MPC? Apparently not, because he recklessly put himself in the position where he might be coerced to do this crime. Would D have a possible justification (necessity) defense to murder under the MPC? He might. Why? Because D is charged with an intentional crime, D's recklessness in bringing about the situation requiring a choice of evils does not in itself preclude D from relying on the justification defense. Would D have a justification (necessity) defense to manslaughter under the MPC? Probably not. Why? Because MPC manslaughter is a crime where recklessness is the mens rea.  [NOTE: Where did this hypo come from? I made it up by looking at the MPC duress and necessity statutes and trying to think of a situation where D's recklessness could preclude a duress defense, but not a justification (necessity) defense under the MPC. This is how your teachers come up with exam questions. I suggest that you might try to do the same thing. Knowing the answer, try to envision a story (case) that would call for the answer. Put the story in the form of a question. This is a great way of outguessing the person who creates your exam. Put yourself in the prof's shoes and try to write one or two issue hypothetical questions! Of course, the next step is to answer your own hypo. See Exam Taking Tips]


Here are some of the situations in which one person may be authorized by law to use force against another person: Self-defense; Defense of Another, Defense of Habitation, Force to Resist Arrest (Unlawful and/or Excessive Force), Defense of Property, Use of Force in Law Enforcement by Officers and Citizens Who Seek to Arrest, Search, or Stop an Escape from Arrest or Custody, Use of Force to Prevent Crime, Use of Force to Protect Life or Health, Use of Force to Discipline Those in Special-Dependency Relationships. There are also other issues concerning the legitimate use of force, such as how much force the law will permit a person to freely and voluntarily consent to another person exercising against him or her.

A man should not be struck when he is down.
Civilization is nothing more than the effort to reduce the use of force to the last resort.
Arma in armatos sumere jura sinunt.  - The laws permit taking up of arms against armed persons.
Never start an argument with your hands in your pocket.

As it might seem, self-help in the form of use of force against another in self-defense (SD) is one of the oldest common law defenses. (1), (2 - theory), (3), (4), (5), (6), (7)  One of the current issues in the area of self-defense is the extent to which the law of self-defense should bend toward the subjective position of the would be defender. This comes to the fore in the battered spouse cases. Two cases, State v. Stuart, 763 P.2d 572 (KS 1988) and State v. Leidholm, 334 N.W.811 (N.D.1983), symbolize the two views. These two cases involve the controversial and somewhat complex issues surrounding the influence of the battered spouse and battered child syndromes on the culpability of the spouse or child who intentionally kills the batterer, e.g., spouse or parent, under circumstances that otherwise resemble an assassination, e.g., while the alleged batterer is asleep. With syndrome cases we must come to grips with whether the SD law should expand to justify, excuse, or mitigate such killings. We must consider the admissibility of expert testimony, the admissibility of prior acts of misconduct by the deceased, the necessity of instructions that enlarge the objective (reasonable person) reasonableness standard to encompass the battered defendant's subjective fear. In order to decide whether and how SD should accommodate battered spouses and children, we should first get a handle on the basic law of SD. So, let's briefly examine the basic concepts.

C/L Self-Defense - The general law of SD under the c/l would allow the use of force in proportion to the unlawful force being used against the defendant (D) by an aggressor. Although early c/l treated SD as an excuse, currently it is considered as justifiable use of force against unlawful  aggression by another. SD is allowed only when D has a reasonable fear that the other party threatens unlawful force. Reasonableness is a largely an objective test. The c/l does not allow just any subjective "fear" to qualify. Otherwise, each of us would have a license to use force against another based on our subjective beliefs, no matter how surreal or strange they might be. (Take a look at State v. Simon, 646 P.2d 1119 (Kan. 1982) where the old curmudgeon plugged his Asian-American neighbor in the honest but unreasonable belief, based solely on ethnicity, that the neighbor was a Kung-Fu master.) However, courts are tending to allow certain subjective factors to be considered in determining reasonableness in cases where reasonableness is to be determined by putting oneself in the D shoes( with D's physical characteristics) and seeing it through D's eyes (with D's prior experiences as a backdrop). See People v. Goetz, 497 N.E.2d 41 (NY 1986) Obviously, the more subjective factors the jury is allowed to consider on the reasonableness issue, the better the defendant's chances will be for a successful SD claim.

No more force than is actually or apparently necessary may be used. The defender may act on reasonable appearances. So, if the defender honestly and reasonably defends herself based on a reasonable mistake about the necessity of using force in SD, she may defend lawfully herself. On the other hand, if the defender's belief in the necessity of using force is an unreasonable belief, the c/l and most jurisdictions, e.g., Texas, hold that there is no right of self-defense. In these jurisdictions, SD is an all or nothing defense. A  minority of jurisdictions allow a middle position and recognize that a good faith unreasonable mistake regarding the necessity of using force should act as a mitigating  consideration in the form of imperfect self-defense (ISD). In such jurisdictions, the good faith unreasonable mistake regarding the use of DF will typically mitigate a murder down to voluntary (The net effect is similar to that result when the killing is in the heat of passion with adequate cause.) manslaughter in some jurisdictions or to involuntary (reckless or criminally negligent) in other jurisdictions [Note: The MPC seems to follow the latter approach. See Section 3.09 (2) which is the MPC's version of imperfect self-defense]. Some jurisdictions may also permit the ISD claim when the defendant is at fault for bringing on the difficulty. In ISD jurisdictions, one might logically argue that the negligently mistaken person who kills should only be liable for criminally negligent homicide, rather than intent to kill homicide. This form of ISD, though not recognized at c/l, is an answer to to the person who otherwise has no defense to murder at c/l when his/her good faith belief in the necessity for deadly force is unreasonable. The rationale for the imperfect self-defense is that the unreasonable mistake with regard to the amount of force one is justified in using or the unlawfulness of the other party's force negates the mens rea for murder. Remember that unreasonable mistake under imperfect self-defense mitigates the level of responsibility but does not excuse or justify the use of deadly force.

[Note: Common Law Excusable Imperfect Self-Defense / Chance Medley - Early English c/l recognized a different concept known as imperfect self-defense in cases of mutual combat (affray or fights) between two persons in which one suddenly used excessive deadly force and the other responded reasonably by killing the one who originally used deadly force. The English c/l required the would-be defender to retreat, but if he couldn't do so, he was allowed to use DF to kill the other party who first resorted to deadly force during the affray or mutual combat.  The killing was excused, though not justified, on the ground that it was "excusable imperfect self-defense." The rationale for making this an excuse was that the person resorting to deadly force in self-protection had no independent purpose to violate the law against killing. This so-called excusable imperfect self-defense was also called "chance-medley" at c/l. Just remember, at c/l, if the actor formed an honest and sincere belief in the existence of justificatory facts but the belief was unreasonable, there was no c/l self-defense allowed in justification and there was no mitigation at c/l to a lower offense in the form of imperfect self-defense.]

The c/l and most jurisdictions require that the threat of force against which the defendant (D) may justifiably use force to defend himself be "imminent." Before deadly force can be used against another in self-defense, D must honestly and reasonably believe that s/he is under imminent unlawful threat of grievous (serious) bodily injury or death.

The Original Aggressor Becoming a Defender - With regard to SD, the aggressor cannot change himself into a defender as long as the aggressor continues the attack (the aggression), However, if the aggressor withdraws from the attack and makes it clear, by word or deed, to the victim that the aggressor has withdrawn from the attack, the right of SD returns to the original aggressor. If the original victim continues the aggression, the original victim becomes the new aggressor and then loses the right to use defensive force. The original aggressor becomes the new victim with the right to use SD.  Of course, the original victim will not be deprived of the right of SD if she is reasonably dubious of the original attacker's claim of withdrawal, as where it may be a ploy to gain the upper hand over the original victim.    

Re Battered Spouses and Children -
No woman had ever shot a man while he was washing dishes.
A woman, a dog, a walnut tree. The more you beat 'em the better they be.
Saying. Circa American Civil War era.
Beat your child once a day. If you don't know why, he does.
Chinese Proverb
Don't ever hit your mother with a shovel.
It leaves a dull impression on her mind.
Paul Newman song from Butch Cassidy and the Sundance Kid
He was her man, but he done her wrong.
Lyrics from "Frankie and Johnny"
Lay that pistol down, babe. Lay that pistol down.
Pistol packing momma, lay that pistol down.
Lyrics from popular song of the 1940's
She shot him in the back before he could hit her first.

How objective should the reasonableness standard of self-defense be? Consider cases of domestic violence (1), (2). Should juries be allowed to consider any of the subjective mental and physical characteristics of the battered spouse or child? Does allowing such matters to be considered mean that one may use force against another, including deadly force, based on unreasonable beliefs? Or have we just expanded the reasonableness standard? Consider some of the landmark "sleeping with the enemy" cases.  We know from State v. Stuart, 763 P.2d 572 (Kan.1988), where the accused, Peggy, shot her sleeping husband, Mike, to death, that some jurisdictions will deny the D SD when the batterer-victim is assassinated, e.g., the sleeping spouse who is the target of deadly defensive force. But State v. Leidholm, 334 N.W. 811 (N.D.1983), where the accused, Janice, stabbed her sleeping husband, Chester, to death with a butcher knife, presents the other side of the coin. Should the psychological inability of D to retreat, coupled with the D's inability to resist the batterer when awake, and the batterer's threats to kill D some time in the future make SD available in cases where D kills the batterer while he is sleeping? Does it take some moxie and boldness to coldly execute a sleeping person? Are cases like Stuart good candidates for an imperfect self-defense instruction that would reduce the intent to kill murder to a lesser offense of manslaughter or criminally negligent homicide depending of how unreasonably mistaken the spouse or child is about the need  for deadly force? Of course, folks in the position of Stuart want a perfect self-defense because perfect SD entirely justifies the killing and they go free. Does the battered-spouse syndrome diminish our view of women as people as equally capable of making choices as males? Does the "helpless" woman who gains her freedom by killing the unwary spouse perpetuate a stereotype of the clinging totally dependant female with no way out?

MPC Use of Force in Self-Protection - The MPC self-defense (use of force in self-protection) law is found in Section 3.04. Under Section 3.04 (1) the defendant (D) has a claim of self-defense (SD) in situations where she believes that the force she used against another is immediately necessary to protect herself from unlawful force used by that other person on the present occasion. On the surface it looks like, from Section 3.04, the use of force in SD is allowed on the purely subjective belief of D that she has an honest subjective belief in the necessity for using force - without any requirement that her belief be reasonable. However, when you look at Section 3.09(2) MPC you see that if D is recklessly or negligently mistaken in believing that force was  immediately necessary, he can be prosecuted for a reckless or negligent commission of the act. So, the MPC SD  law is not entirely subjective. For example, in a homicide, the D who recklessly believed that DF was immediately necessary could be convicted of manslaughter, and the D who was criminally negligent could be liable for criminally negligent homicide. So, unlike the c/l and TPC, under the MPC when D is reckless or negligent in believing that force is immediately necessary the MPC does not deprive D of SD. This is the MPC version of so-called imperfect self-defense. Neither the traditional c/l nor the TPC provides an imperfect-self defense. Thus, under the c/l and TPC, D's negligence re the need for SD (unreasonably mistaken self -defense)  is a bar to D's SD claim for murder.  

Notice that the MPC and the TPC (in Section 9.31) use the words "immediately necessary," rather than "imminent." This may make it easier for the battered spouse or child to claim SD under the MPC and TPC  than would be the case in jurisdictions, e.,g., the c/l, that require the danger to be "imminent."  Note that, under Section 3.04(2)(a)(1) MPC, one is not allowed to rely on use of force in self-defense to resist an arrest, even though it is an unlawful arrest, by a person known to be a law-enforcement officer. Note also that, under Section 3.04 (2)(b)(i) MPC, one loses the right to use DF in SD if he, with the purpose of causing death or serious bodily injury, provokes V into the use of force during the same encounter. .

Under the MPC, the general rule is that if V attacks D with deadly force (DF)  and D can retreat with safety and knows it, D cannot stand her ground and use DF on V. See Section 3.04(2)(b)(ii) MPC. This approach is not widely adopted, but some states follow this rule. The MPC seems to be grounded on the policy that it is always preferable to avoid the threatened harm. The argument for the MPC rule may be that it is never immediately necessary for D to use DF if he knows he can retreat with complete safety. There is an exception to the retreat requirement for the D attacked in his own dwelling unless D was the first aggressor; the same is true for the D's place of work, except when it is also the aggressor's place of work and the D knows it. See MPC Section  3.04(2)(b)(ii)(1).

Concerning the use of deadly force (DF) under the MPC, the D has to feel that DF is necessary to protect himself against death, serious bodily injury, kidnapping, or forcible or threatened sexual intercourse.

Texas Self-Defense - (Consult Bushrod's Notes for Assignment Twelve for more useful Texas SD information.) In Texas, self defense is a defense. See Sec. 9.02 TPC. Once the evidence raises it, the prosecution must disprove it beyond a reasonable doubt. See Sec. 2.03 TPC; Saxton v. State, 804 S.W.2d 910 (Tex. Crim App 1991).The variables regarding SD include (1) D's reasonable belief (defined in Section 1.07(42) TPC) in the existence of immediate necessity (This includes a reasonable belief base on apparent danger as well as actual danger.), (2) the nature of the conduct to which D's force responds, e.g., D needs to reasonably believe that the other is using unlawful force ("Unlawful" is defined to include criminal or tortious force.", and (3) the degree of force, either force or deadly force, which D uses in SD. Like the MPC, the TPC SD law in Sections 9.31, 9.32 focuses on force that the D reasonably believes is immediately necessary (not "imminent" as in the c/l) to protect her/himself against another's use or attempt to use unlawful force. Law Change: As of September 1, 2007, the actor's belief that force or DF is immediately necessary is presumed to be reasonable if the actor : (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actors occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle,or place of business or employment; or (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, aggravated robbery; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. If all the required elements of SD are present, D may strike first. D may only use necessary force. The force should be proportional. That is, D may not use deadly force to protect against the other's use of force. Under the TPC, MPC and c/l D is justified in using authorized self-defensive force against the aggressor and not against some innocent third party.

There are certain circumstances in Texas under which force is not justified in SD , e.g., (1) in response to verbal provocation (words) alone,i.e., words alone will not justify use of force in self-defense (Remember this is a different question that whether words alone can constitute adequate provocation that incites sudden passion.) (2) to resist a search or arrest that D knows is being made by a peace officer or person acting at his direction even though the search or arrest is unlawful, (3) if D consents to the exact force used or attempted to be used against D by the other person,e.g., mutual combat, medical surgery, consensual sex, boxing, etc. (4) if D intentionally provokes (provoking the difficulty) the other person's use or attempted use of otherwise unlawful force unless the D abandons the encounter or reasonably believing he cannot safely abandon the encounter, clearly communicates his intention  and the other person nevertheless continues or attempts to continue to use unlawful force against the actor, or (5) D sought an explanation from or discussion with the other person concerning D's differences with the other person, while D was unlawfully carrying a weapon in violation of Section 46.02 TPC or possessing or transporting a weapon in violation of Section 46.05 TPC [Note: This fifth category overrules the c/l right of people to arm themselves and seek peaceful resolution of difficulties.]  Notice also that, in Texas and the MPC, D does have the justifiable right to use force to resist an arrest or search if, before the D offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest and search and when and to the degree D reasonably believes the force is immediately necessary to protect himself against the peace officer's use or attempted use of excessive force.

Concerning use of DF in Texas, "deadly force" is defined in Section 9.01(3) TPC as "force that is intended or known by the actor to cause , or in the manner of its use  or intended use is capable of causing death or serious bodily injury."  Section 9.32 TPC indicates that D is justified in using DF to protect himself if he is justified in using force and if retreat is not required under new Secs. 9.32 (c) and (d) and D reasonably believes that it is immediately necessary to protect himself from the other person's attempted use of unlawful DF or to prevent the other person's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated assault, aggravated sexual assault, robbery or aggravated robbery.        
  • Texas "family violence" as it relates to reasonableness of the defendant's belief that deadly force is immediately necessary - We know that Texas has a designer statute, Art. 38.36 (b) CCP, that relates to the admissibility of evidence of family violence and expert testimony regarding the condition of the mind of D in murder prosecutions. This does not mean that Texas has a subjective test of the need for SD in family violence cases. The Texas test still requires a "reasonable" belief - a largely objective test. However, in cases where the defense raises SD or defense of a third person, the jury is entitled to hear the Art. 38.36(b) CCP evidence in determining "reasonableness." The test is still largely objective because the family violence/expert testimony does not require the jury to determine reasonableness only on the basis of such testimony. This evidence is simply thrown into the hopper with all the other evidence. The issue would seem to be whether a reasonable person in the battered person's position would have believed that deadly force was immediately necessary. The jury won't be told to invest the reasonable person with every characteristic of the D, but the jury can certainly consider the expert evidence and the proof of prior family violence in determining reasonableness.  Also, remember that, under Art. 38.36(b) CCP, before such evidence is admissible, the D must raise SD or defense of a third party.          

Retreat Before Resorting to Deadly Force in Self-Protection -
Of all alternatives, running is always best.
Never reward a bully.
If God didn't want us to retreat, why did she give us legs?

In every jurisdiction except Texas, retreat only comes up as an issue when the defender resorts to deadly force in self -protection. [Note: A very foolish and poorly drafted change in the Texas law occurred in 2007 when the Texas Legislature enacted Sec. 9.31(e); this law ridiculously suggests that there may be some situations where an actor would be required to retreat before using non-deadly force in self-defense.] If there is a duty to retreat under a state's law before resorting to DF and the defender chooses to stand his ground and resort to DF, the defender will be denied the defense of self-defense which is typically viewed as justification, e.g., MPC & TPC, rather than excuse.
  • Common Law Retreat -  The traditional American common law rule is that one does not have a duty to retreat before resorting to DF in justifiable defense of self. Some modern American jurisdictions have deviated from the c/l rule and, as a general rule, now require retreat as a condition precedent to the use of DF. There is some disagreement as to whether the English c/l required retreat. [Note that Weaver et al. say on page 580 that English common law required retreat before resort to DF in self-defense. IMO, this is too broad.] It is agreed that retreat was required in the case of so-called "Chance Medley" killing, e.g., when one party to a mutual combat or affray (mutual fight) suddenly used deadly force and the other responded by killing the one who originally used deadly force; the English c/l required the would-be defender to retreat to the wall; if he did so and killed his pursuer, he would be excused; if he stood his ground when retreat was available, he was liable for voluntary manslaughter; if an avenue of retreat was not available, he was allowed to stand his ground and use DF in self-protection. Note that among the American jurisdictions that do require retreat as a condition to using DF in self-defense, the retreat rules vary, e.g., some create exceptions to the retreat requirement when the actor is in his home or place of business. There may also be exceptions to the exceptions, e.g., the aggressor is a cohabitant. Suffice it to say that the current law of retreat in the U.S. is jumbled. Consider the differences between retreat under the MPC and the TPC discussed below.
  • MPC Retreat - Section 3.04 (b) (ii) MPC requires retreat before resorting to deadly force in self-protection only when there is an avenue of complely safe retreat open to the defender and the defender knows of it. A mere belief or hope that there is a safe way out will not trigger the duty to retreat. The actor is not required to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.
  • Texas Retreat Changes to "Stand Your Ground" - In every American jurisdiction, with the possible exception of Texas under meddlesome new Sec. 9.31(e) TPC, and under the c/l and the MPC, retreat is never an issue when the D resorts only to force, as opposed to deadly force (DF), in defense of self. There is simply no retreat required when D only uses force in SD. The issue of retreat only arises when D resorts to DF. For many years Texas had a bizarre retreat test that gave the actor, who did not retreat before resorting to DF in SD, no real advance notice of whether s/he would be deprived of a SD claim because s/he did not retreat. The former TPC retreat rule was contained in Section 9.32(a)(2); it stated that a person was justified in using DF against another only "if a reasonable person in the actor's situation would not have retreated." As of 9-1-2007 this is no longer the case. Section 9.32(c) now provides: "A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section." In situations lacking any of these three requirements and in the face of legislative silence, logic would dictate that retreat before using DF would be required.

Risk to Innocent Bystanders of Force Used in Self-Defense -  What happens when the force one justifiably uses in SD against an attacker hits an innocent bystander? Typically, D is not responsible for hitting an innocent bystander while responding justifiably to an attacker. The wounding or injuring of the innocent party is deemed an accident. However, if D is reckless or negligent in the nature of his response, e.g., recklessly (consciously disregarding a substantial and unjustifiable risk) spraying machine gun bullets into bystanders while justifiably defending against an unlawful deadly attacker. TPC Section 9.05 makes it clear that even though D may be justified in using force or DF against another, if in so doing D also recklessly injures or kills an innocent third party, the justification afforded by Chapter 9 is unavailable in a prosecution of the reckless injury or killing of the innocent third person.  


(Read Dressler UCL for a good summary.) The common law allows D to use force, including deadly force, to protect another person. One approach to defense of another puts D in the shoes of the person s/he is defending. Such a D would have no more right to use defensive force to protect a person than the person has to defend himself. This is called the "alter ego" test. Most jurisdictions have abandoned the common law alter ego test of third party defense that allowed a defender of a third party to use only the force in defense of a third party that the party being defended had a right to use. The more prevalent "reasonable appearance" test for third party defense permits D to use force, including DF, to defend the third party when D reasonably believes that such force is justified.

MPC Defense of a Third Party - Section 3.05 MPC provides that a defendant may use force (including DF where applicable) to protect another when D believes the use of force is necessary for the protection of such third person, when D would be justified in using such force to protect himself against the injury he believes to be threatened to the third person, and when under circumstances as D believes them to be, the third party would be justified in using such force . There is no requirement in Section 3.05 that D's belief be reasonable, but Section 3.09(2) MPC indicates that if D is reckless or negligent in a mistaken belief that force is necessary in defense of another, D may be liable for a crime where recklessness or negligence is the mens rea, e.g., reckless manslaughter or criminally negligent homicide.

Texas Defense of a Third Party -  (Consult Bushrod's Notes for Assignment Twelve for additional insight.) Section 9.33 TPC provides that a D is justified in using force or deadly force against another to protect a third person if, under the circumstances as D reasonably believes them to be, the person being protected would be justified in using force or deadly force under Sections 9.31 or 9.32 TPC to protect himself from the unlawful force or unlawful deadly force (actual or apparent) that D reasonably believes to be threatening the third person that D seeks to protect and  D reasonably believes that his intervention is immediately necessary to protect the third person. Under this reasoanle appearance rule, D is allowed to defend the third person as D reasonably perceives the third person would be able to defend himself. This includes the use of force and deadly force (DF). Regarding retreat the law before September 1, 2007, before D can resort to the use of DF in defense of a third person, Texas case law (Hughes) held that D must retreat if D reasonably believes that a reasonable person in the third person's situation would have retreated. Conversely, if D did not so believe, D is not required to retreat before using DF against another in defense of a third person. In light of the (malpractice) surgery done by the Texas legislature on the former retreat rule in new Sections. 9.31 (e),(f) and 9.31 (c),(d), the issue of retreat in defense of a third party is now up in the air.     


(Read UCL 6th for a thorough discussion.) The home is a valued place of sanctuary in American society. We have laws against trespass and laws against burglary that protect our dwellings from unlawful entry. We want to feel secure in our homes. Many jurisdictions that have a general retreat requirement allow deadly force to be used in defense of the habitation against an intruder if the occupant has a reasonable belief that the intruder intends to commit a felony (often an "atrocious" or "dangerous" felony) inside the home. The right to use DF in defense of home is sometimes called the "Castle Doctrine." (1)  Note that some jurisdictions will require D to retreat from the home before using DF if the attacker is also a lawful occupant of the home. 

Common Law Defense of Habitation -  The original common law rule allowed the occupant of a home to use deadly force against an intruder of the home if the occupant: (1) reasonably believed that the other person intended to unlawfully and imminently enter the home and (2) reasonably believed that DF was necessary to prevent the unlawful entry. If the intruder could reasonably be kept out by something less than DF, the occupant had to use those non-deadly means. This is a very liberal rule in allowing DF, since the occupant doesn't have to believe that the intruder, against whom the DF is being used, is going to do anything unlawful in the home once the unlawful entry is made. The focus is on the unlawful entry.

Most jurisdictions have abandoned the original rule because if too readily authorizes the use of deadly force against the home intruder. Today, most jurisdictions with a special protection that authorizes use of DF against home intruders require: (1) a reasonable belief that the person intended to enter unlawfully and imminently, (2) a reasonable belief that deadly force is necessary to prevent unlawful entry; and (3) reasonable belief that the intruder intends to commit a forcible or atrocious felony that involves danger to the person, e.g., burglary, robbery, arson, etc. 

Common Law Use of Spring Guns -  Because a spring gun is a deadly man trap that involves the use of deadly force, the common law didn't allow it to be used to protect property in general. (Remember that the c/l did not allow DF to be used solely to protect mere property.)  However the issue of spring guns set up, often at night, to protect the home was a different matter. The c/l took the position that if the owner if present would have been allowed to use the spring gun in protection of the habitation (home, dwelling), then the spring gun could be used in the owner's absence. To do this calculus, one must apply the c/l defense of habitation to the situation, e.g., was there a reasonable belief that the intruder intended imminent unlawful entry, was DF necessary to prevent the intrusion, and, in most jurisdictions today, did the intruder intend a forcible (sometimes called an "atrocious") felony. Notice that with spring guns, D bore the risk of hurting an innocent person. There was nor reasonable mistake of fact defense if D's spring gun harmed an innocent person such as a small child or fireman.  [Note: The modern trend is clearly away from spring guns. We know, for purposes of the final, that the MPC, Section 3.06 (5), and TPC, Section 9.44,  clearly outlaw their use. If you move to another state, check the local law before setting up a spring gun or other deadly man traps.]  

Texas Defense of Habitation: As of September 1, 2007, Secs. 9.31 (a)(1) (A) and (B) and 9.32 (b)(1) (A) and (B) state that the actor's belief that force and DF was immediately necessary is presumed to be reasonable if the actor (1) knew or had reason to believe that the person against whom the force was used (A) unlawfully and with force entered or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment. Taken with the September 1, 2007, changes in Texas retreat law, Texas appears to be taking a step toward the Colorado "make my day" defense of habitation statute illustrated in People v. Guenther, 740 P.2d 971 (Colo. 1987) or State v. Anderson, 972 P.2d 31 (Okla. Crim. App. 1998). Note, however, that there is no separate defense of habitation justification in Texas.


The c/l allowed a reasonable force short of DF to resist an arrest solely because it was unlawful. The MPC, Section 3.03(a)(1) , does not allow one to use force to resist an arrest being made by one, whom the actor knows is a peace officer, solely because the arrest is unlawful. The TPC, Section 9.31(b)(2), indicates that one has no right to resist an arrest, that the actor knows is being made by a peace officer, solely because the arrest is illegal. Since excessive force is not allowed in performing an arrest, the TPC, Section 9.31(c),  recognizes a limited right to use force to resist the use of excessive force by the office to arrest. [Note: According to the Bureau of Labor Statistics, a commercial fisherman is nine times more likely to be injured on the job than a firefighter or police officer. Of course, fish don't carry fire, shanks and Uzis.]


There are generally two different scenarios that are involved when we consider using force with regard to property, i.e., (1) using force to protect property or (2) using force to regain or recapture property of which one has been dispossessed.

Common Law Defense of Property - Under the common law, force, but not deadly force (DF), could be used to defend property. To repeat, DF cannot be used solely to defend property. Unlike Texas and to a much lesser extent the MPC, the common law treats human life as more valuable than mere property. At common law, one could use non-deadly force to protect real or personal property from imminent taking, damage, destruction, trespass, or dispossession. D could also use non-deadly force to re-enter real property to recover personal property immediately after it had been taken. Notice that if P, a property owner, used deadly force against D, a simple thief, in the absence of any actual or apparent threat of deadly force (or force) by D, D would have the right to use deadly force against P in response because P's use of deadly force to protect his property was unlawful.

MPC Defense of Property -  Section 3.06 MPC deals with the use of force for the protection of property. Deadly force is permitted in a couple of very limited circumstances under 3.06(3)(d), i.e., (1) when D uses the deadly force he believes he is being dispossessed of his dwelling by V other than be a claim of right or (2) when V is attempting to commit or consummate arson, burglary, robbery, felonious theft or property destruction and either has employed or threatened deadly force against or in the presence of D or where the use of non-deadly force to prevent consummation or commission of the crime would expose D or another in D's presence to substantial danger of serious bodily injury.

Texas Defense of Property - Section 9.41 TPC authorizes use of force in defense of property; Section 9.42 TPC contains a very liberal law authorizing the use of DF to protect property. [Remember the hypo involving use of deadly force by D from his third floor condo at 2 a.m.against the bicycle thief who is fleeing from the parking lot.]


The common law allows law enforcement officers, persons acting under the authority of law enforcement officers, and lay citizens acting on their own to use force to arrest suspected criminals. The are a number of different rules. In cases of suspected misdemeanants the common law (and the MPC) allows use of non-deadly force but not deadly force to arrest a suspected misdemeanant. Of course, deadly force (DF)  in self-defense may be appropriate if the misdemeanant resists the arrest with actual or apparent DF.

Common law gave the law enforcement officers the power to use non-deadly force when the officer reasonably believed it was necessary to make a lawful arrest for any crime (felony or misdemeanor).   

Regarding citizen's arrests by lay persons, the c/l did allow the citizen acting alone to use DF in making a citizen's arrest. The citizen acted, however, at his own peril in being certain that an offense had actually occurred.

The c/l allows DF to be used to stop a fleeing felon (any felony) if it was the last resort, i.e., where arrest could not otherwise be effected and it was thus reasonably necessary. The crime itself may have been over.  Early c/l didn't even require a showing that DF was reasonably necessary; this early rule was extremely liberal in allowing the use of DF against a fleeing felon or escapee.  The issue is the amount of force or DF that can be used to arrest or prevent flight. The cases usually involve police officers, but not always, as we know from the Couch case in the casebook. Because the fleeing felon law extended into modern days notwithstanding that there are many more felonies than in earlier times, trigger-happy law enforcers would sometimes shoot non-dangerous felons in flight. The case of Tennessee v. Garner, 471 U.S. 1 (1985) is a very significant limitation on the use of DF in arresting a fleeing felon. Garner indicates that deadly force can be employed by a law enforcement officer to arrest a fleeing felon only when: (1) it is necessary to prevent the felon from escaping arrest, (2) if practical, a warning is given, and (3) the officer has probable cause to believe that the fleeing felon poses a serious threat of death or bodily injury to the officer or to others if the fleeing felon is not arrested. Thus, police are not allowed, under the Fourth Amendment prohibition against unreasonable seizures, to use deadly force to arrest a suspect who is unarmed and non-dangerous. Note in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007) the court held that a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist's car from behind.  [Note: Arrest scenarios are often face-to-face confrontations that may also involve questions of SD.]

The MPC and TPC do not have specific fleeing felon rules. [Note, however, that Section 9.42 (2) (B) TPC does permit use of DF in Texas in certain defense of property cases to prevent escape with stolen property when the perpetrator is fleeing with the property immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime; our hypothetical bicycle thief is an example.]

MPC, Section 3.07, details the right to use force and DF in law enforcement. The citizen acting on his own is not allowed to use DF to arrest.      

The TPC, Section 9.51, provides the degree of force that can be used by law enforcement officers and citizens in arresting and searching. Citizens, acting alone, are not allowed to use DF in making an arrest. Section 9.52 TPC details when force and DF can be used to prevent escape from custody of an arrested person and an inmate escaping from a correctional facility. Section 9.52 TPC provides for the use of force by officers of correctional facilities.


Common law: At original c/l when there weren't many felonies and virtually all carried the death penalty, deadly force could be used by law enforcement officers and citizens against any felon to prevent any felony so long as DF was necessary to prevent the felony. The actor using DF did not have to be the victim of the felony. Thus, cops and private citizens could kill felons who were in the act of committing a felony if it was reasonably necessary to prevent the felony. It didn't matter where the felony was occurring. At c/l, DF could never be used solely to prevent a misdemeanor.

MPC: The MPC in Section 3.04 (2)(b) indicates that the use of DF in SD is available in certain scenarios when the actor, wholly apart from protecting himself from death or serious bodily harm,  believes it is necessary to protect himself from kidnapping or sexual intercourse compelled by threat or force.

The MPC in Section 3.06 (3)(d) (ii) indicates that DF may be justifiable against a person who is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and the use of force other than DF to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm.

Texas: Texas appears to allow the use of DF to prevent the consequences of certain very serious specifically named crimes against the person. The TPC, in Section 9,32(a)(3)(b), allows the use of DF under some circumstances when and to the degree that D reasonably believes that DF is immediately necessary to prevent another's imminent commission of the following crimes against the person: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery. Note that the Texas retreat rule would apparently have to be applied to these situation.

Texas, in Section 9.42 (2)(A) also seems to allow the use of DF to prevent another's imminent commission of certain serious specified property crimes, i.e., arson, burglary, robbery, aggravated robbery, theft during the nighttime, and criminal mischief during the nighttime (This latter crime is not typically very serious but it is included.). As mentioned above in connection with discussion of the c/l fleeing felon rule, Texas in Section 9.42 (2)(B) also provides for the use of DF to prevent another from escaping with the property when fleeing immediately after commission of one of the following specified property crimes: burglary, robbery, aggravated robbery, or theft during the nighttime. There is no retreat rule here.    


Note that MPC Section 3.07 (5) describes when force and deadly force can be used in protection of life and health, e.g., using force against a person to prevent him from committing suicide or inflicting serious bodily harm upon himself. Texas, in Section 9.34 TPC, also provides for the use of force and DF in certain situations involving life or health, e.g, where force is reasonably necessary to prevent another from committing suicide.

"Do not withhold discipline from a child; if you punish him with the rod, he will not die.
Punish him with the rod, and save his soul from death." Proverbs: 23:13-14
"Train up a child in the way he should go; and when he is old he will not depart from it." Proverbs 32:6

The common law allows parents and teachers in loco parentis to use of moderate force in disciplining of children. The MPC in Section 3.08 deals with the use of force by parents and guardians and also with the teachers right to use force to maintain discipline. TPC Sections 9.61, 9.62 and 9.63 deal respectively with the use of force in the following relationships: parent-child, educator-student, guardian-incompetent. Remember that local school regulations may prohibit physical punishment of students. ["I'm all for bringing back the caning rod, but only between consenting adults." - Gore Vidal]


The MPC deals with consent of a person to the conduct charged and the legal effect of it in Section 2.11. Paragraph (2) of the section says that consent to bodily harm is a defense in three situations: (1) the bodily harm consented to or threatened by the conduct consented to is not serious, (2) the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or (3) the conduct establishes a justification of the conduct under Art. 3 of the MPC. Paragraph (3) details when consent is ineffective. Notice that 3.08(4) MPC covers conduct of the doctor or other therapist in treating the consenting patient.
Texas, in Section 22.06 TPC, covers the issue of consent as a defense to assaultive conduct in prosecutions for assault, aggravated assault, and/or deadly conduct.

The power of a government is abused and directed to an end for which it was not constituted when employed
to promote rather than detect crime and to bring about the downfall of those who, left to their own devices,
might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations
without the government adding to them and generating crime.
Justice Felix Frankfurter
Sherman v. United States, 356 U.S. 369 (1958)


[Note to students in my criminal law course: It is disappointing that Dressler's UCL chose not to address the defense of entrapment in his UCL hornbook. In fact, this is probably the most glaring omission in this otherwise handy book. His reason may be that entrapment relates to the subject of police practices and is more appropriate to a course in criminal procedure. It is also not part of the common law. It's not raised successfully very often. Nor is it a defense of constitutional dimension. However, entrapment is a defense to criminal liability, and we are studying crimes and defenses. At any rate, I will try to provide you with enough information to get a lasso over the concept of entrapment. If you want further information, you might start by consulting Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory, 32 Ariz. L. Rev. 605 (1990) There is also a discussion of entrapment in Assignment Fourteen of Bushrod's Notes 2 ]

The defense of entrapment (1), (2), (3) (4 -sample brief) is grounded upon public policy rather than upon doctrinal technicalities. In entrapment situations, the defendant does not claim that he didn't commit the crime. Instead, with the entrapment defense the accused says, " I don't deny that I did it, but the law enforcement agent tricked me into doing it by improper overreaching." The primary reason for holding the actor not liable is because of deceitful police conduct.  Indeed, in many jurisdictions if the accused denies he did it, he will be precluded from raising the defense. [Note: Such is the case in Texas under the case law interpreting the Section 8.06 TPC entrapment defense as being unavailable to one who affirmatively denies commission of the offense, see Hubbard v. State, 770 S.W.2d 31 (Tex. App - Dallas 1989); McEntyre v. State, 717 S.W.2d 140 (Tex. App. - Houston [1st] 1986); Garrett v. State, 625 S.W.2d 809 (Tex. Crim App. 1981); Reed v. State, 421 S.W.2d 116 (Tex. Crim. App. 1967). However, in federal prosecutions the defense of entrapment is not precluded notwithstanding that the defendant denies one or more elements of the crime, see Mathews v. United States, 485 U.S. 58 (1988).]

  • Professors LaFave and Scott speak eloquently when they describe entrapment thusly, "There are currently two major approaches to the defense of entrapment ... The majority view is usually referred to as the "subjective approach" ... A two-step test is used under the subjective approach: The first inquiry is whether or not the offense was induced by a government agent; and the second is whether or not the defendant was predisposed to commit the type of offense charged ... The emphasis under the subjective approach is clearly upon the defendant's propensity to commit the offense rather than on the officer's misconduct. The "objective approach" focuses upon the inducements used by government agents. This means that entrapment has been established if the offense was induced or encouraged by 'employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." Criminal Law,  West (2nd ed, 1986)

So we have these two rationales, the subjective and the objective, as to whether entrapment has occurred. - The "subjective approach" is the majority rule. The minority of jurisdictions embrace the  "objective approach. " Let's look at these two approaches a little closer.

  • Subjective (predisposition) - Under the subjective approach, we first ask whether there was questionable police inducement (as in the objective test). If the answer is "yes," then we ask a second question, namely: "Did the accused have a predisposition to commit the offense?" If the answer to the second inquiry is also "yes," the subjective approach would then preclude the defendant from being acquitted on the entrapment defense. In practice, the jurors who decide the issue probably balance the inducement versus the predisposition; one would suspect that the stronger the evidence of predisposition, the more inducive government conduct the jurors may be likely to brook (tolerate) permit. The predisposition provision limits the number of defendants who will go free based on the entrapment defense. The defendant's prior criminal record or lack of it is not only relevant as indicative of the presence of absence of predisposition but is one of the extremely rare forms of specific character evidence admissible under Rule 405(b) of the Federal Rules of Evidence, allowing proof of specific instances of conduct which is an "essential element of a defense." [Note Rule 405(b) TRE is similar in content.] Actors are obliged to resist temptation to the point that a person of reasonable firmness would; a simple "but for" connection between the agent's inducive or encouraging conduct and the actor's commission of the offense is not enough. It is not unusual to see federal case law declaring that where the defendant is predisposed to commit the crime, there is no entrapment. See United States v. Harper, 505 F.2d 924 (5th Cir. 1974).

  • Objective (police conduct) approach - Under the objective approach, we simply ask, "Was there improper police conduct?" If so, then conviction is barred. We determine if the conduct was improper by focusing on the representation and means of persuasion or inducement and ask whether these would induce or encourage a person who was not predisposed to commit the offense, i.e., a person other than those ready to commit it. The objective test seems to treat all offenders as people of ordinary naivete and potential criminality. Previous convictions, acquittals, and any other evidence of predisposition of the accused are irrelevant under this approach.

Note: Both objective and subjective versions of the entrapment defense typically bar the defense when causing or threatening bodily injury (violence) to someone other than the entrapping officer is an element of the offense charged. Why does it make sense that entrapment should not be available in a prosecution for an offense which involves causing or threatening bodily injury or death to a third person? Is it because it is not a victimless crime? Notice that Section 2.13(3) MPC bars entrapment in offenses involving bodily injury to third parties. TPC  Section 8.06 does not address this issue.

Note: Be careful not to confuse the entrapment defense with situations where the involvement of a law enforcement agent causes an element of the crime to be missing.

Query: Why should predisposition be an important element in the entrapment calculus? As to whether a defendant's predisposition, or lack thereof, to commit the crime in question is relevant to the inquiry about possible entrapment, the answer depends upon the purpose of the concept. If the primary purpose of the entrapment defense is to simply discipline and deter errant, overzealous, gung ho law enforcement officers from overstepping the line by engaging in conduct that would induce ordinary people, i.e., law abiding persons, to commit crime, then the predisposition the particular defendant would seem unimportant. But if the primary purpose of the entrapment defense is to save from conviction one who would not have violated the law it not have been for official inducement (incitement), without excusing those who were read and willing to commit the crime, the predisposition of the defendant is a matter of primary importance. After all, the defense shouldn't be a windfall to those with a bent toward crime, should it? And besides, will cops be deterred from sweetening the pot to catch a person they consider to be a crook just because the law tells them in vague terms that they shouldn't entice an otherwise law-abiding person.  See O'Conner, Entrapment Versus Due Process: A Solution to the Problem of the Criminal Conviction Obtained by Law Enforcement Misconduct, 7 Fordham Urban L. J. 35 (1978); Rossum, The Entrapment Defense and the Teaching of Political Responsibility: The Supreme Court as Republican Schoolmaster, 6 Am. J. Crim. Law 287 (1978).
Query: Consider the chilling affect (influence) that raising the entrapment defense may have on a defendant if, by raising it, he opened the door to a searching inquiry into his prior misbehavior to prove a predisposition to commit the offense charged. In jurisdictions that follow a subjective approach, you generally find holdings that say that the entrapment defense raises the issue of the defendant's predisposition  to commit the crime and allows the prosecution to show specific prior bad acts as character evidence to show a predisposition to commit the act charged. Notice in the Russell case, employing the subjective test, that the prosecution was allowed to introduce evidence that the defendant had been previously engaged in the manufacture of amphetamines. The idea is that one who raises the entrapment issue should not be able to object to a searching inquiry into his previous conduct to disprove the absence of predisposition. See Thompson v. United States, 403 F.2d 210 (5th Cir. 1968); Lewis v. United States, 277 F.2d 378 (10th Cir. 1960); United States v. Fadel, 844 F.2d 1425 (10th Cir. 1988). See also Rule 405(b) FRE that would permit specific acts of character regarding an element of a defense, e.g., predisposition re entrapment. In an objective jurisdiction, proof of uncharged misconduct to rebut a defensive claim of entrapment would not be relevant since predisposition is not an element of entrapment under the objective test. A defendant with a criminal record who has been the subject of what would otherwise be a clear case of entrapment of a law abiding citizen, might well forego the subjective entrapment defense.
Query: Even though the police conduct was constant, the attractiveness of the entrapment test may well depend on the admissibility of the criminal background of the accused. If the jurisdiction follows the subjective approach, do the police have a green light to lure the a predisposed suspect into a crime with huge chunks of bait that would not be permitted if the suspect  were not predisposed?
Query: Since entrapment is not a constitutionally based defense and has no corrupting fruit of the poisonous tree doctrine attached to it, conduct amounting to entrapment might be useful to the police on a cost-benefit basis, e.g., to discover other crimes and  other defendant.
Query: What if the police acting as police affirmatively assure a person that a mode of conduct is legal and then arrest him for commission of the conduct on the ground that it is a crime? The offender has relied upon the antecedent guarantee of an officer of the law that what he did was lawful, though in fact it was not. This may be viewed as entrapment by estoppel (1). See Raley v.Ohio, 360 U.S. 423 (1959).
Query: What control should be placed on undercover police who can influence the sentencing decision by conduct that urges a defendant to commit a more aggravated form of the offense, e.g., a narc who urges a dealer to provide a larger amount of drugs or an undercover game warden who urges the renegade hunting guide to assist the warden in more serious wildlife offenses. There may be no initial entrapment, but the officer aggravates the punishment by pushing the accused to more or more serious crimes than agreed. Some call this "sentencing entrapment."

THE SUPREME COURT CASES ON ENTRAPMENT: Let's look at a couple of USSC cases that deal with entrapment:
+ (1) United States v. Russell, 411 U.S. 423 (1973) relates solely to the existence and definition of the defense of entrapment in federal court. [Note: Entrapment is not a defense of constitutional dimension. Thus, each state is free to recognize the defense and, if so, to define it as it wishes. Nevertheless, I think every state recognizes the defense in one form or another.] Russell was on trial for having unlawfully manufactured and possessed speed and having sold and delivered it in violation of law; the defendant did not deny having done so but claimed that he could not properly be convicted because of entrapment. The trial court submitted a standard entrapment jury instruction (jury charge), the jury convicted; on appeal to the USSC, Russell, the respondent (defendant in the trial court), contended that he was entrapped as a matter of law. The USSC revered the Circuit Court and affirmed the conviction. The evidence revealed that a government undercover officer supplied the defendant  with key ingredients to make the drug speed. The case reflects the two theories of what constitutes entrapment: (a) the subjective approach considers predisposition and inducement, and (b) the objective approach that measures the amount of government conduct against the standard of what would induce a law-abiding person to commit the offense to see if the government's efforts amounted  to improper overreaching. The USSC adopted the subjective approach as the one that would govern in federal prosecutions. The three dissenters argued for an objective approach that would focus on the conduct of the government agents.
+ (2) Jacobson v. United States, 503 U.S. 540 (1992) helps us understand how the federal test of entrapment works. At a time when federal law permitted such conduct, Jacobson ordered and received from a bookstore two "Bare Boys" magazines containing photographs of nude preteen and teenage boys. Subsequently, the Child Protection Act of 1984 made illegal the receipt through the mails of sexually explicit depictions of children. After finding Jacobson's name on the bookstore mailing list, two government agencies sent mail to him, through five fictitious organizations and a bogus pen pal, to explore his willingness to break the law. Many of these phony organizations represented that they were founded to protect and promote sexual freedom and freedom of choice and that they promoted lobbying efforts through catalog sales. Some mailings raised the specter of censorship. Jacobson responded to some of the correspondence. After two and one-half years on the government mailing list, Jacobson was solicited to order child pornography.  He answered a letter that described concern about child pornography as hysterical nonsense and decried international  censorship, and then received a catalog and ordered a magazine depicting young boys engaged in sexual activities. Jacobson was arrested after a controlled delivery of a photograph of the magazine, but a search of his house revealed no materials other than those sent by the government and the "Bare Boys" magazines. At his jury trial, he pleaded entrapment and testified that he had been curious to know the type of sexual actions to which the last letter referred and that he had been shocked by  the "Bare Boys" magazines because he had not expected to receive photographs of minors. He was convicted, and the Court of Appeals affirmed. In overturning Jacobson's conviction, the United States Supreme Court purported to rely on the federal subjective test of entrapment, concluding that the prosecution had failed as a matter of law to establish that the defendant was predisposed, independent of the government acts, to receive child pornography through the mail. In addition, the Court seemed highly offended at the government tactics used to ensnare Jacobson. The opinion of the court indicated that the government must prove the defendant's predisposition to commit the offense and that the defendant's predisposition was not a product of government conduct

Other federal entrapment decisions from the USSC and the policy that underpins the issue: Here are some additional entrapment cases from the USSC: Sorrells v. United States, 287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369 (1958) holding that entrapment was established as a matter of law; Lopez v. United States, 373 U.S. 427 (1963) holding that no entrapment was shown; Osborn v. United States, 385 U.S. 323 (1966) holding that no entrapment was shown; Hampton v. United States, 425 U.S. 484 (1976) holding then even when the government supplied the actual contraband, the purchaser could not rely on entrapment where the evidence showed that he was predisposed to commit the offense; Matthews v. United States, 485 U.S. 58 (1988) holding that the entrapment defense is available to an accused who denies one or more elements of the offense.

  • Query: What is the policy that underpins the federal entrapment defense? As its theory, the majority appears to hold that where entrapment is established the crime has not been committed, i.e., Congress did not intend to punish one who has been entrapped by a federal agent. Some might contend that it is wishful thinking to believe that Congress had any such intent. Nevertheless, in this sense, entrapment might be viewed like other defensive excuses. The minority of the USSC seems to take the policy position that one who is entrapped is guilty of the offense but that the government is estopped from complaining of the offense because of the misconduct of the officer in inducing its commission. Under this theory, entrapment is more a procedural bar to conviction, designed to curb overzealous police efforts to encourage criminal acts in an effort to catch those who would perpetrate them. 

  • Query: As to who decides the entrapment issue in federal court, the majority in Russell appeared to feel that the existence of entrapment is a defense that must be found by the jury. The minority appeared to feel that it is legal determination for the court based on estoppel.

  • Query: As to evidence that establishes entrapment in federal court, the majority in Russell held that entrapment is the act of the officer implanting a criminal intent in an otherwise innocent mind. Hence, no entrapment exists if there was a predisposition to commit the offense (subjective approach). The minority insisted that predisposition of the defendant to commit the offense is irrelevant; under this view, entrapment exists if the government officer resorts to a method that would be likely to result in the offense by one not otherwise inclined (objective approach).  All members of the Russell court are gone to the great beyond.  One would suspect that the present USSC would be be hard pressed to hold that there could be any circumstances be an entrapment by one predisposed to commit the offense.

COMMON LAW RE ENTRAPMENT: The defense of entrapment was not recognized at English common law, but as a result of the decision of the USSC in Sorrells v. United States, 287 U.S. 435 (1932) the defense became part of the federal case law in the United States, and, thus, what might be called of modern federal case law.

MODEL PENAL CODE RE ENTRAPMENT: The entrapment defense is contained in Section 2.13 MPC. This is an objective test which purports to focus entirely on the issue of police misconduct. The predisposition of the particular defendant does not seem to matter and thus would be irrelevant. The law enforcement methods condemned are those means of persuasion or inducement  that create a "substantial risk" that such an offense will be committed by "persons other than those who are ready to commit it." The MPC test judges the police misconduct by the objective standard of whether it would induce a person of ordinary naivete. Whether the actual defendant was ready to commit the crime before the entrapping conduct of the law enforcement officer doesn't seem to be an issue. See Section 2.13 (1) (b) MPC. The MPC would have an entrapment issue settled by the judge rather than the jury. By Implication, the MPC views entrapment as an estoppel theory for the court rather than a defensive jury issue. The MPC also puts the burden of persuasion on the defendant to prove entrapment by a preponderance of the evidence. The defense is not available when causing or threatening bodily injury is an element of the offense and the victim is someone other than the entrapping officer.

TEXAS PENAL CODE RE ENTRAPMENT:The Texas entrapment defense is defined in Section 8.06 TPC as follows:(a) It is a defense to prosecution that  actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment; (b) In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

In Texas, entrapment is a defense, and, therefore, the defense has the burden of production of evidence that will raise the issue of entrapment. Once the issue of entrapment  is raised, the prosecution has the burden of disproving the defense beyond a  reasonable doubt, i.e., the defendant must be acquitted unless the prosecution's evidence removes all reasonable doubt as to the existence of entrapment.  See Section 2.03 (d) TPC.

A number of Texas cases have considered the entrapment defense. For a period of time under one group of Texas Court of Criminal Appeals judges, it was thought that the defense was governed by the objective approach. See Langford v. State, 571 S.W.2d 326 (Tex. Crim. App. 1978); Langford v.State, 578 S.W.2d 737 (Tex. Crim. App. 1979); Norman v. State, 588 S.W.2d 340 (Tex. Crim. App. 1979); Bush v. State, 611 S.W.2d 428 (Tex. Crim. App. 1981). In England v. State, 887 S.W.2d 902 (Tex. Crim. App 1994) a new crew of primarily Republican ex-prosecutors decided that the Texas entrapment defense created a so-called mixed subjective/objective test which permits evidence of prior bad acts that is relevant to whether the accused was subjectively induced to commit the offense, but not simply to show general propensity to engage in crime, and, also, focuses objectively upon whether the persuasion used by the law enforcement agent was such as to cause a  hypothetical person, i.e., an ordinary law-abiding person of average resistance,  to commit the offense, not whether it was such as to cause the accused her/himself, given the accused's proclivities, to commit it. The net effect of the subjective portion of the test concerning whether there was an inducement is to open the gate to proof of relevant prior acts of uncharged misconduct (evidence of predisposition) that will show the accused was not in fact induced to commit the subject offense.

In Texas, a law enforcement officer or one working for the officer will be considered an accomplice witness for purposes of corroboration. See Gomez v. State, 461 S.W.2d 422 (Tex. Crim. App. 1970).

Entrapment is a defensive issue for the jury. However, there is a provision of the Code of Criminal Procedure that suggests that entrapment as a matter of law may also be raised as an incident of pretrial practice. See Section 28.01(9) CCP permitting the trial court to decide the issue prior to trial. See Dopico v. State, 752 S.W.2d 212 (Tex. App. Houston 1988).

COMPARATIVE  NOTE RE ENTRAPMENT: Entrapment as a defense is unknown in the civil law systems of Western Europe or the criminal justice system of China and is also not recognized as a defense in the English system. Thus, for example, if a member of the foreign constabulary approaches an American tourist who has no predisposition to purchase drugs or exchange currency in the black market but is induced to make such an illegal exchange, the tourist cannot claim entrapment as a defense.

"While we may some day be presented with a situation in which the conduct of law enforcement agents
is so outrageous that due process principles would absolutely bar the government from invoking
judicial processes to obtain a conviction, the instant case is distinctly not of that breed."
Justice Rehnquist
United States v. Russell (1973)

In a few cases where the conduct of the government agents was arguably so extreme as to be "outrageous" or "grossly shocking," yet there is no entrapment because of predisposition, the defense relied on the quoted dictum from Justice Rehnquist to claim a due process violation. See United States v. Smith, 538 F.2d 1359 (9th Cir 1976). See also United States v. Twiggs, 588 F.2d 373 (3rd Cir. 1978) later repudiated by the Third Circuit; Commonwealth v. Mathews, 500 A.2d 853 (Pa. 1985). But see United States v. Tucker, 28 F.3d 1420 (6th Cir); United States v. Santana, 6 F.3d 1 (1st Cir. 1993). Rehnquist later recanted his Russell dicta in Hampton v. United States, 425 U.S. 484 (1976). The due process outrageous government conduct defense is a doctrine that is very occasionally adopted by courts bound by a subjective approach to entrapment. See Outrageous Government Conduct, 18 ALR5th 1 (1994); Dripps, At the Borders of the Fourth Amendment: Why a Real Due Process Test Should Replace the Outrageous Government Conduct Defense, 1993 U. Ill. L. Rev. 261. It would probably be an unnecessary concept in a jurisdiction that employs the objective test of entrapment. See Ramirez v. State, 822 S.W.2d 240 (Tex. App. - Houston [1st] 1992) a case that appears to recognize the existence of the outrageous government conduct claim.

Stick to the alleybi. Nothing like an alleybi, nothing.
Charles Dickens
The Pickwick Papers, 1837

Alibi (1), (2), (3), (4) is a misidentification claim in which the accused tries to prove s/he was somewhere s/he really weren't , so a jury will believe s/he weren't where they really were. (That's supposed to be a joke.) Still, the word alibi has a negative connotation. In Latin, "alibi" simply means "elsewhere in another place." It occurs when the evidence raises the issue that the accused was somewhere other than where the alleged offense was committed when it was committed, i.e., the defendant was in a place where he couldn't have committed the crime. (1), (2), (3), (4) In effect, it is a negation of an element of the crime, i.e., identification of the accused as the wrongdoer. Since the burden of proof is on the prosecution to establish guilt beyond a reasonable doubt and alibi is a rebuttal of the identity element, alibi would seem top be just an aspect of the failure of the prosecution to meet its burden. The same would be true for a claim of misidentification (1).

FEDERAL ALIBI: The defense is recognized in federal court. See United States v. Beaver, 524 F.2d 963 (5th Cir. 1975). Rule 12.1 Fed. R. Crim. Proc. provides for notice by the defendant before alibi may be used; reciprocal disclosure by the government of the witnesses it will use to place the defendant at the scene is required. Roughly thirty-five states, not Texas, have notice of alibi statutes. Typically, the trial judge is allowed to bar the testimony of the undisclosed alibi witness.

TEXAS ALIBI: There is no statutory provision for presentation of an alibi defense in the TPC or CCP. There is no notice of alibi requirement. Thus, the defense may sandbag the prosecution, normally by calling the undisclosed alibi witness as the last defense witness. For many years in Texas, courts gave an alibi instruction. See Walker v. State, 37 Tex. 366 (1872). However , since enactment of the TPC in 1974, there was controversy as to whether alibi was a recognized defense. One group contended that alibi was simply part of the "reasonable doubt defense" that occurs when the prosecution is unable to prove the elements of the crime, e.g., identity of the accused as the doer. See Holliman v. State, 879 S.W.2d 85 (Tex. App. - Houston [1st] 1994; Villareal v. State, 821 S.W.2d 682 (Tex. App. - San Antonio 1991); Suniga v. State, 733 S.W.2d 594 (Tex. App. - San Antonio 1987) where the court concluded that the defendant was not entitled to a jury instruction on alibi because alibi simply negates one of the elements of the offense that the prosecution must prove, i.e., that the defendant was present at the time and place of the offense. Another line of cases indicated that there was a right to a separate alibi jury instruction. See Byers v. State, 641 S.W.2d 629 (Tex. App. - Tyler 1982) and Morales v. State, 727 S.W.2d 101 (Tex. App. - San Antonio 1987) indicating that the alibi defense does exist in Texas. The matter is now settled. There is no right to an alibi jury instruction even if the defense offers affirmative evidence of the accused's presence elsewhere at the time the crime occurred. See Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998).

Look. Don't worry. It's not loaded.

The concept of accident as a defense is utilized in some jurisdictions to indicate that the prosecution has not proven a crime.  In Texas, the term "accident" is not found as a defense to criminal conduct. Instead, when the  defense tries to show that the accused did not have the culpable mental state mens rea) that must accompany the conduct  or did not engage in a voluntary act, the trial court instructs the jury to acquit if it has a reasonable doubt as to whether the required culpable mental state existed  or  as to whether the defendant acted voluntarily under Section 6.01(a) TPC. See Williams v. State, 630 S.W.2d 640 (Tex. Crim. App. 1982).


This is a so-called legal defense. i.e, a defense that is primarily a question of law. The statute of limitations (1), (2) (existent in federal statutes and in all states except South Carolina and Wyoming) provides a defense that has nothing to do with the accused's blameworthiness. For policy reasons, it bars conviction by limiting the prosecution to presenting the formal charge within a certain period of time from the date of the offense.  Check your state's S/L. See Chapter 12 CCP for the Texas limitations in criminal cases.

COMMON LAW: The English common law took the position that "no lapse bars the King." There was no statute of limitations at common law, i.e., no limitation as to the time within which offenses could be prosecuted.

MPC S/L: Section 1.06 MPC contains the MPC statute of limitations.

TEXAS: The statute of limitations is a defense which the defendant forfeits if not asserted at or before the guilt/innocence stage of the trial. The defendant may assert it before trial by filing a motion to dismiss under Art. 27.08(2) CCP. It may be asserted by asking for a jury instruction on limitations if there is some evidence before the the jury from any source that prosecution is barred by limitations. If there is such evidence raising the issue, the instruction must require the prosecution to prove beyond a reasonable doubt that prosecution is not limitations barred. See Proctor and Lemell v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). See Chapter 12, Sections 12.01-12.07 CCP for the various periods of limitations. The statute of limitations can be viewed as an act of amnesty in which the prosecution waives its right to prosecute after a certain time period. See Vasquez v. State, 557 S.W.2d 779 (Tex. Crim. App. 1977). See also Archer v. State, 577 S.W.2d 244 (Tex. Crim. App. 1979). To raise the defense, the defendant must bring it to the court's attention by filing a motion to quash the charging instrument. See State v. Yount, 853 S.W. 2d  8 (Tex. Crim. App. 1993).


This is a so-called legal defense. i.e, a defense that is primarily a question of law. The constitutional protection against double jeopardy (1), (2) protects accused persons from multiple conviction for the same offense, either when the accused has been previously convicted or acquitted of the offense. The double jeopardy doctrine does not bar prosecution by different sovereigns (different states and/or the federal government). For example, a bank robbery may be prosecuted in both state and federal court, and conviction or acquittal in one jurisdiction will not bar trial in another. Of course, the federally guaranteed protection is contained in the Fifth Amendment of the U.S. Constitution. The MPC deals with the subject of jeopardy in Sections 1.08-1.11. The bar against double jeopardy in Texas is found in Article One, Section 14 of the Texas Constitution (1) and Articles 1.10, 1.11 and 36.33 CCP.

Here are a few of the major cases interpreting the double jeopardy clause of the Fifth Amendment: Bartkus v. Illinois, 359 U.S 121 (1959); Benton v. Maryland, 395 U.S. 784 (1969); Blockberger v. United States, 284 U.S. 299 (1932) test to determine if there are two offenses or one ; Price v. Georgia, 398 U.S. 323 (1970) conviction for lesser offense bars retrial for greater offense; Ashe v. Swenson, 397 U.S. 436 (1970) collateral estoppel; Illinois v. Somerville, 410 U.S. 458 (1973); United States v. Wilson, 420 U.S. 332 (1975); Brown v. Ohio, 432 U.S. 161 (1977); Harris v. Oklahoma, 433 U.S. 682 (1977) conviction for felony murder acts as bar for conviction of underlying felony; Greene v. Massey, 437 U.S. 19 (1978); Crist v. Bretz, 437 U.S. 28 (1978); Whalen v. United States, 445 U.S. 684 (1980); Albernaz v. United States, 450 U.S. 333 (1981); Missouri v. Hunter, 459 U.S. 359 (1983);Spaziano v. Florida, 468 U.S. 447 (1984); Payne v. Virginia, 468 U.S. 1062 (1984); Arizona v. Rumsey, 467 U.S. 203 (1984); Garrett v.United States, 471 U.S. 773 (1985); Lockhart v. Nelson, 488 U.S. 33 (1988); Witte v. United States, 515 U.S. 389 (1995); Rutledge v. United States, 517 U.S. 292 (1996).


This is a so-called legal defense. i.e, a defense that is primarily a question of law. When a defendant is denied his Sixth Amendment right to a speedy trial (1 - Sixth Amendment speedy trial) , (2), (3) (measured from the filing of charges until trial commences), the remedy is dismissal of the charges with prejudice to refiling. Some jurisdictions, not Texas, also have an operative  Speedy Trial Act, a statute that puts time limits on the government, e.g., the Federal Speedy Trial Act, sample Federal Speedy Trial Plan implementing the Act, and Rule 50 F.R.Cr. P. providing that scheduling preference be given to criminal proceedings as far as practicable. See Texas Constitution,  Bill of Rights, Article I, Section 10Articles 1.03, 1.05,  CCP. Note that the Texas Speedy Trial Act, Art. 32A.02 CCP was declared unconstitutional in Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987).


This is a so-called legal defense. i.e, a defense that is primarily a question of law. When a decision to prosecute is made selectively (1) based on arbitrary standards such as race, sex, religion, or other arbitrary classification, or when the prosecutor is vindictive, the prosecution may violate the Due Process and/or Equal protection Clauses. See United States v. Armstrong, 517 U.S. 456 (1996); Blackledge v. Perry, 417 U.S. 21 (1974); Thigpen v. Roberts, 468 U.S. 27 (1984). Note that selective or vindictive prosecution is an issue for the court in Texas (1) and is not an issue for the jury.



Bullets II

Famous Trials
Copyright © Ray Moses 2002-2017
All rights reserved.












Legally Competent
to Stand Trial and Represent Himself But Crazier Than the Proverbial Peach Orchard Boar

Long Island Railroad Mass-Murderer Colin Ferguson (1) defended himself. He sounds like a competent lawyer, until you recognize his extreme self-delusion. Judges have to be certain the accused is competent to stand trial, but judges generally don't force the accused to plead the not guilty by reason of insanity defense or raise it for him/her.
Documentary: (1) (2)


Nuremberg War Crimes Highlights
Following superior orders doesn't work well when you are the superior. (1) The Nuremberg trials also gave rise to the principle that persons claiming to have merely followed orders would not be relieved of criminal responsibility provided that a moral choice was available.
See also "Tokyo War Crimes Tribunal,"
"Japanese War Crimes."


Was it necessary that Vincent stick a needle in the  heart of a lady who had just snorted his heroin,  thinking it was blow?


(I know my rights.)

The "Subway Vigilante"

Bernhard Goetz explains his shooting of four teenage thugs on a NY subway
to Wm. Shatner in the new show Aftermath. This is a fascinating story, a bit reminiscent of Taxi Driver
and Bronson's series of
Death Wish films.

Are there some circumstances when we think the victim had it coming? Goetz seems to feel that way about his four victims. How do you feel?

(1- Wiki on Goetz)
(2- The Guardian Angels)


A University of Southern California criminal law professor discusses the Goetz case as his lecture in a model class addresses the claim of self-defense in justification of the use of force against another.
People v. Goetz, 497 N.E.2d 41 (N.Y. 1986).


Be careful about being suspected of stealing a ham and egg sandwich in Palm Harbor.
Do you wonder if this chap's
IQ is comparable to the
number of errant shots
he fired?


Consider the the opening scene in the film "American History X" starring the superb Edward Norton. When and for how long did the shooter have the right to use deadly force against the armed thieves and the occupants of the fleeing automobile?

[The quality of the image is not good, but this film has enough great legal issues to make it worth watching. (1)]

The most chilling scene in the film is the infamous "curb stomp" killing in the clip below. Analyze it as a student of criminal law.


News About  Hinckley


How do you feel about a claim of justifiable necessity for one who kills a doctor who does late term abortions?

In May of 2009, Roeder premeditatedly and intentionally gunned down Dr. George Tiller, one of the few doctors in the U.S. who did such operations.
Roeder Verdict:

Necessity is not available as a defense to trespass charges filed against protestors at an abortion clinic in Texas. See Bobo v. State, 757 S.W.2d 58
(Tex. App - Houston
[14th Dist] 1988).


Self-defense Korean style in
the classic 2003  film Old Boy.

Once upon a time....Clint stopped for a cup of coffee.
"I know what you're thinking, punk.""
You fill in the rest. Hint: He said the exact same thing in two films. Do you know them? Dirty  Harry and Sudden Impact. His 44 magnum still had a shell in one and was empty in the other.


A Good BBC Film


Cop Reichert - Collinsville IL
Misuse of canine sniffers?
"You're free to go, but not in the car."

We are told that about 5.3 million people in the U.S.A. have Alzheimer's Disease.
With more superannuated
folks like me, the numbers
are almost certain to rise.

Childhood decides.
John Paul Sarte

The states typically have a set of  specialty courts often know as juvenile courts that handle cases of children whose conduct either makes them a child in need of supervision (CINS) or assistance (CINA) or, more seriously,  a juvenile delinquent. This issue is beyond the scope of this Bullets page but can be adequately explored on the Internet, e.g., (1 - juvenile delinquency), (2 - juvenile justice), (3 - ABA),
(4 - Harris County),
(4 - In re Gault granting juveniles the right to assistance of counsel, notice of charges,a fair and impartial hearing, the privilege against self-incrimination,  and confrontation of witnesses).
(5 - In the Matter of R.R. holding that there is no constitutional right to a jury trial in juvenile cases but that Texas by statute grants such a right on the issue of adjudication but not disposition)
(6, 7 & 8 - Roper, Graham, and Miller deal with age of the offender and the penalties of death, precluded by Roper for those under 18 (juveniles) at the time of the crime, and life without parole (LWOP), precluded  by Graham for juveniles in the case of non-homicide crimes and also  precluded for juveniles by Miller for homicide crimes when LWOP is mandatory (automatic). Note that Miller is retroactive (1).

Mug shot of a  10-year-old common law burglar.
George Zimmerman Trial
Legal Issues

Although the media and social activists have made the Trayvon Martin homicide the posterchild for repealing "stand your ground laws,"
the issues at the trial  I watched did not involve the FL "stand your ground" law. Neither side played the race
card. Nor did the defense offer evidence that a drug screen showed trace amounts of pot in
Martin's system.

GZ was a pudgy, brown, adult wannabe cop and Martin a suspended, lean, black, 17-year-old high-schooler in a hoodie. The legal issue in the case was whether the prosecution could prove BARD that when he resorted to the use of deadly force (a loaded pistol) either GZ  (1) did not have a reasonable belief that he was in immediate danger of serious bodily injury or death or (2) if he actually had such a belief, that it was unreasonable under the facts and circumstances.

Most lay people (and lots of 1L law students) don't understand the way burden of persuasion (proof) is applied in self-defense cases.

Self-defense is a preventive claim. One doesn't have to take a deadly beating to invoke the claim. On the other hand, one can't use deadly force on another simply in a preemptive manner because the defender fears that the
other might at some future time pose a deadly danger.
(This is latter thgeory is akin to the mendacious claim of the Bush2 White House as justification for invading Iraq.)

Those who have firm opinions about how the GZ murder case should have turned out based on the law and facts should probably look at
the selection of the jury,
the presentation
of the evidence,
and the jury instructions
(1) (2) before mouthing
concrete conclusions.

Could a reasonable jury have convicted GZ of manslaughter or acquitted?
Yes, either verdict would have been supported by portions of the evidence. The verdict depended on how the jury applied the self-defense burden of proof issue
to the facts as the jury found them to be.


Notice that to receive an instruction on necessity in Texas, the defendant must admit to all the elements of the crime including the culpable mental state.
See Juarez v. State, 308 S.W..3d 398
Tex. Crim. App 2010)


Police Killing

Roughly 1,000 Americans are killed each year by police. The number holds steady. Violent crime and on-duty deaths of police are declining. Blacks are killed at more than their proportionate nymber in the population. The average number of felony convictions
for the 1,000 police killings: