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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Tuesday, March 9, 2010

10 - Criminal Law - Death Crimes – Defenses (Insanity & Intoxication)

10 - Murder – Defenses (Insanity and Intoxication)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Last time in crimes, we talked about defense of others. Now we talk about insanity and intoxication. Insanity is first.

Insanity Defense

To begin with, the law presumes that the defendant is sane, so the burden is on the defendant to produce some evidence that he is insane if he wishes to raise the insanity defense. Then, the burden switches to the prosecution to prove that the defendant is sane. However, the United States Supreme Court allows states to put the burden of proof on the defendant to prove he is insane if they so choose.

There are four tests for insanity: 1) M’Naghten, 2) Irresistible impulse, 3) Substantial Capacity (MPC), and 4) Durham.

Under the M’Naghten Test the defendant must prove that due to a defect in reasoning caused by a mental disease, he did not know right from wrong or did not know the nature and quality of his actions.

Under the irresistible impulse test, you add a volitional element to M’Naghten (“and his mental disease kept him from controlling his conduct”). This is why it is sometimes called the M’Naghten Plus test. So the test would be the defendant must prove that due to a defect in reasoning caused by a mental disease, he did not know right from wrong or did not know the nature and quality of his actions and his mental disease kept him from controlling his conduct.

Under the ALI-Model Penal Code test the defendant needs to show that as a result of mental disease or defect, she lacked “substantial capacity” to (a) understand the difference between right and wrong or (b) to conform her conduct to the dictates of the law.

Under the Durham test, sometimes called the “product” or “product of” test, the crime must be a product of a mental disease (considering all symptoms and circumstances). This is an extreme minority view which is pretty much dead today.

M'Naghten is normally more difficult for the defendant to prove – that he did not know right from wrong or did not know the actual nature and quality of his actions than to merely prove that while he might have known the difference between right and wrong, he did not “appreciate” the difference, as under the ALI-Model Penal Code Test.

Most states have adopted the M’Naghten Test (which is the traditional rule). The federal courts had adopted the ALI-MPC, but Congress, by statute, decided the test should be M'Naghten.

The ALI-MPC is the modern rule. Make sure that you discuss all four tests on an exam, devoting more time to the M’Naghten, then the ALI-MPC, followed by the M’Naghten Plus rule and then Durham. In a pinch, just do the M’Naghten and the ALI-MPC.

Intoxication

Insanity requires the lack of cognitive ability to distinguish right from wrong or to understand the nature and quality of an act. Intoxication only requires sufficient intoxication to negate an element of the particular crime. For example, involuntary intoxication is often a defense to specific intent crimes because it affects the ability to formulate the specific intent (e.g., intent to place someone in fear of an imminent harmful or offensive contact -- for assault) required for that crime.

There are two types of intoxication, voluntary and involuntary. Voluntary intoxication is generally not a valid defense, while involuntary intoxication generally is a valid defense.

There are a variety of forms of intoxication. Obviously, intoxication by alcohol is one, but don’t overlook intoxication by drugs, both legal and illegal – prescription and even over the counter.

We’ll move on to the preliminary crimes when we return to crimes.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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