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Common-Law Federal Criminal Defenses:

I just wanted to very briefly comment on Orin's post on the subject. Dixon v. United States involved the question of who is to bear the burden of proof as to a duress defense. The "long-established common-law rule" had been that the defendant must prove duress by a preponderance of the evidence, and the Court held that Congress did not intend to displace this rule. This is where the "offense-specific context" language comes up (citation omitted):

Congress can, if it chooses, enact a duress defense that places the burden on the Government to disprove duress beyond a reasonable doubt. In light of Congress' silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress "may have contemplated" it in an offense-specific context. In the context of the firearms offenses at issue -- as will usually be the case, given the long-established common-law rule -- we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence.

It seems to me that this common-law tradition is the most important factor here, and the longstanding common-law acceptance of the defense-of-property defense should lead federal courts to assume that Congress didn't mean to preempt it, at least absence a statement from Congress to the contrary.

It's true that Congress likely didn't think much about the defense when enacting computer crime laws; but the point of the common-law criminal defenses is precisely that the legislature often doesn't think much about defenses, which often (as with duress, for instance) involve relatively rare circumstances. The defenses are out there to be used when the triggering circumstances arise, and Congress doesn't need to think much about them when enacting specific statutes.

So it seems to me that Dixon is quite consistent with my position: Congress legislates against the background of various common-law rules related to criminal law defenses, and the general presumption is that Congress doesn't mean to displace these background rules.

BruceM (mail) (www):
I've long felt that if a defendant makes a prima facie showing of an affirmative defense the state should have to disprove it beyond a reasonable doubt. On a similar note, it has long troubled me when defenses are listed, enacted, and particularly when they are prohibited. NO defense should be prohibited, which always comes about after a defendant wins a high-profile case. The moral outrage of the law and order types causes the legislature to ban the successful defense. I believe it violates due process to bar the presentation and consideration of ANY defense. In fact, I think the state's proving all the elements of a crime should only create a rebuttable presumption that a crime was committed by the defendant. The defendant should be allowed to rebut that presumption any way possible/plausible, and then the state should have to negate that rebuttal beyond a reasonable doubt, or there should be an instructed verdict for the defendant.
4.11.2007 10:05pm
Bill Poser (mail) (www):
BruceM,

I think I'm sympathetic to your view in general, but I wonder if the defense should be allowed to present any defense at all, even those that involve considerations contrary to public policy. For example, do you really want to allow the defense to present the "the victim needed killing because he was a nigger" defense?
4.12.2007 1:54am
BruceM (mail) (www):
Bill, no it has to be a legitimate defense, i.e. one which negates one or more of the elements of the crime. Although if a defendant really wants to take the stand and say "I killed him because he was a nigger and needed killing for that reason alone" I'm sure there's not a prosecutor out there who would object to that. Maybe such a defense worked in Roy Bean's court during the late 1880's. It certainly would not work today. I guess what you're really asking is whether the defendant would be entitled to a jury instruction on such a defense if one were requested by the defendant. Sure, why not? "If you, the jury, find the defendant was justified in killing Victim because Victim needed to be killed due to him being a nigger, you shall acquit Defendant." Do you really think any jury out there would agree with that?

To the extent "he needed killing" is a form of the defense of justification, then sure, if the defendant can put on some evidence that the fact the victim is african american somehow justified killing him, then the state should have to prove beyond a reasonable doubt that the victim's dark skin did NOT justify, let alone require, him to be killed. I don't see how any defendant could make a prima facie showing of such a defense, and certainly any prosecutor could show beyond a reasonable doubt that the law does not justify causing the death of another person due solely to their race. "Victim is a nigger" really isn't a defense at all, no moreso than "I felt like robbing the store" is a defense. But I would not want to draw any bright lines. If a defendant wanted to use that as a defense, then let him. Make the state prove it's not a defense, not applicable, or not supported by the facts beyond a reasonable doubt. I don't want to say something is not a defense as a matter of law, though.

It's really defenses like diminished capacity, self-defense, voluntary/involuntary intoxication, insanity (most of which negate the mens rea) which I do not think the legislature should be permitted to limit or abolish (for example, diminished capacity is not permitted as a defense here in Texas, and insanity is nearly impossible to make out here and most everywhere else).

Let me pose this question: could the legislature pass a law barring the use of an alibi defense? A defendant may not put on evidence showing he was somewhere else during the time the crime was committed. Would such a law be constitutional? I would say most certainly not, as it would be violative of due process, right to a jury trial, and right to confrontation and cross-examination. However, then why is it permissible to bar the use of a diminished capacity defense? I once had a case where my client had severe mental retardation (could barely communicate) and was arrested and charged with providing alcohol to a minor, because she was behind the counter at the family store and accepted money from a young girl who bought a beer. I got the case dismissed, but had it gone to trial, I would not have been permitted to use her retardation to show diminished capacity to negate the culpable mental state. That's bullshit, and just as unconstitutional as barring an alibi defense as far as I'm concerned.

What's scary is that I think a lot of judges on the bench these days would uphold a "no alibi defense" statute, saying the state can regulate criminal procedure how it sees fit, blah blah blah.
4.12.2007 2:21am
Bill Poser (mail) (www):
BruceM,

I agree. The idea that the legislature could exclude legitimate defenses is disturbing.
4.12.2007 3:45am
Eugene Volokh (www):
Defendants already have a constitutional right to raise defenses that negate an element of the crime, as the crime is defined in the statutes, and the prosecution already must disprove such defenses beyond a reasonable doubt. Thus, if your defense to a charge of intentional killing is alibi, you're essentially saying that you didn't kill the person -- alibi is just a term to describe one specific argument as to why you couldn't have killed him (you weren't there). You generally have the right to introduce this evidence (though there's a complicated twist as to intoxication, see Montana v. Egelhoff).

But many defenses do not negate an element of the crime as defined in the statutes -- they are an "I did it, but I had a good reason" or "I did it, but you shouldn't blame me" defenses. If you raise a self-defense defense to a charge of intentional killing, you're saying you did intentionally kill the person (maybe not with a bad motive, but motive isn't a part of the definition of the crime), but that you had a good reason for it. If you raise an insanity defense, at least as to some varieties of insanity, you're saying you did intentionally kill the person but shouldn't be held responsible. If you raise a statute of limitations defense, assuming the statute of limitations is applicable to the crime, you're saying you did intentionally kill the person but the statute of limitations has run.

As a general matter, these defenses may indeed be changed or abolished by the legislature; and the Supreme Court has held (though not without controversy) that the burden of proof on the defenses could be placed on the defendant, who might have to prove the defense by a preponderance of the evidence or even by clear and convincing evidence or beyond a reasonable doubt. (The federal insanity defense, for instance, must be proven by the defendant by clear and convincing evidence.)

A few of these defenses may be constitutionally guaranteed; I think there's good reason to say this as to self-defense, and it's also true for a few other defenses, such as those based on the Double Jeopardy Clause (which may be conceptualized as defenses, though they are usually raised in pretrial motions). But most defenses are not; they are up to the legislature to amend or even repeal.
4.12.2007 1:05pm
BruceM (mail) (www):
I don't really see why there is a dichotomy between the two types of defenses. Plus, if you want to get technical about it, self-defense and the like are not saying "I did it but I had a good reason" because "it" is the "unlawful killing" or something else. You're not admitting it was unlawful, you're sayint itw as lawful because you had a good reason to do it.

But be that as it may, why should the state be permitted to bar a diminished capacity defense? Retardation that doesn't rise to the level/definition of legal insanity can still negate a mens rea (in my case I had no doubt that my retarded client had no idea she wasn't supposed to let that underage girl buy a beer).

I believe the legislature should define crimes, not defenses to those crimes. Any defense, no matter how insanely stupid, irrelevant, nutty, or moronic should be constitutionally permitted and guaranteed. How can the 5th and 6th amendments allow anyting less? As discuss above, if my client wants to put on the "victim was a nigger" defense, what business is it of the government to prevent him from doing so? The state can easily prove (beyond a reasonable doubt) that "defense" is not relevant and in fact, not even a defense at all. Creative lawyers should be allowed to present any possible defense they believe might sway the jury, and it is unconstitutional (IMHO) for the legislature to bar it.

I do think public policy should prevent someone who voluntarily becomes intoxicated from claiming that intoxication prevented him/her from forming the necessary mental state to commit the charged crime, otherwise there would be an incentive for people to get piss-drunk before they attempted to commit a crime ("we'll do our bank robbery in an hour... right now we need to get drunk so that if we get caught they can't charge us."). Such a rule should not apply to involuntary intoxication, though, because the same policy considerations are not present. So I agree with Montana v. Egelhoff to that limited extent.
4.12.2007 5:43pm
BruceM (mail) (www):
Maybe a better way to sum this up, after reflection, is to say that a criminal defendant should always be permitted to ask a jury to find that his actions were justified (affirmative defense) or that the statute does not apply to him (legal defense, such as alibi, lack of mens rea, etc.). The state has no business saying what is and what is not a valid justification. As long as the defendant can make a showing that the foreseeable, reasonable benefits of his actions outweighed the foreseeable, reasonable costs, the state should have to prove the contrary beyond a reasonable doubt. If a defendant can show the benefits of his selling Adderall (amphetamines) to children on the playground outweigh the benefits, then so be it. If the defendant can show the kids' grades and behavior at school and at home improved and that there were no adverse health problems in the children, then it would be a prima facie case for a justification defense. Nobody should be punished for doing something that benefits society.

As I said before, proving all the elements of a crime should not mean the defendant IS and must be guilty; rather, it should only create a rebuttable presumption that the defendant is guilty. The defendant should have to rebut that presumption. And then the state must prove BARD that the presumption was not rebutted. It's kinda like speeding (at least here in TX)... going faster than the speed limit creates a presumption that your speed was not reasonable and prudent under the circumstances. You can rebut that (although the state doesn't have to prove BARD you didn't rebut it). Speed limits are only prima facie statements about what the reasonable and prudent speed is, not absolute prohibitions. Going 36 in a 35 might be reasonable and prudent under the circumstances. Murder and other crimes should work the same way. Intentionally or knowingly killing another human being should only create a presumption the crime of murder was committed.
4.13.2007 4:25am
Viscus (mail) (www):
BruceM,

I don't think juries should have a license to perform cost-benefit analysis in place of the legislature. If a highly idiosyncratic jury happens to believe the benefits of selling amphetamines to children outweighs the costs, but most other juries and the legislature feels otherwise, then a criminal defendant should still be convicted.

In general, juries are not the proper venue for cost-benefit analysis concerning major social issues.
4.13.2007 4:49am
BruceM (mail) (www):
It's not cost-benefit analysis of the issue at large; rather, it's a cost-benefit analysis of the facts of the case, or more specifically, the defense proferred verses the presumption that a crime was committed. I'm not necessarily saying there should be a per se "no harm no foul" defense for every case, and I don't think most juries would buy that. But a defendant should not be barred from offering the fact that his behavior caused no harm and actually improved society to REBUT the presumption that a crime was committed. If we can't have that level of mild jury nullification then there's no point in having juries. There's no point in wasting jurors' time if they're just going to have to "decide" whether or not a defenant possessed something found in his pocket with his fingerprints on it and traces of it in his bloodstream.

Also, higly idiosyncratic juries are a fact of life. Juries are not fungible.
4.13.2007 12:48pm
BruceM (mail) (www):
Also, why should We The People not be the ones to decide social issues? Politicians (who are supposed to represent We The People) should do it? Don't they speak for us (in theory)? If you can't trust We The People then you obviously don't believe in democracy. I'm not saying you're wrong. I sure as hell don't trust the mutual decision of the 12 dumbest people I can find on the street (but I don't trust politicians either).
4.13.2007 12:50pm
P.B. (mail):
It's not the symmetry that counts, but the necessity in order to prevent further damage.

If someone shoots at you, you may justifiably shoot back, in order to stop the attacker from causing you grievous bodily harm.

If someone burglarizes your house, you may not go and burglarize his house.

"Hacking back" seems more like this latter case.
4.13.2007 5:30pm
BruceM (mail) (www):
"If someone burglarizes your house, you may not go and burglarize his house."

That seems to make perfect, common sense. I'm sure nearly all people would agree... unless you are stealing back what was stolen from you. It is not a good defense, but it should not be prohibited from being presented as a defense.
4.13.2007 7:17pm