Duress:

CL: 1. Threat of imminent death or great bodily harm; 2. Reasonableness test; 3. D is not at fault in creating the situation which brings about the necessity; 4. Not a defense to homicide.

MPC 2.09: 1. Threat of unlawful force; 2. Person of reasonable firmness; 3. Subsection 2 – No defense if D is reckless, partial defense if D is negligent; 4. Could be defense to homicide.

Last time we talked about duress. One of the issues was how to distinguish between necessity and duress. The need is more important for the CL than for the MPC. Under 2.09(4), a defendant can argue both, the only question is whether the language of the code applies, both could fit the crime. Under CL, they are often considered mutually exclusive, you can only get an instruction on one or the other.

The book mentions several philosophical distinctions, but not all of them are very helpful. The source of the coercion for necessity is natural forces, for duress it is individuals. Note that in Unger, the prison case, the court said that necessity was a better defense even though another prisoner (human) was threatening the force. Or in Leno, involving the needle exchange, the necessity defense rose in reaction to a combination of human and natural defenses.

Another distinction is that necessity involves acting in the greater good, whereas duress applies when the D is acting in his/her own interests. Also, necessity involves justification, duress involves excuse, they did the wrong thing but we understand why. But the question of whether the D acted for the greater good or self-interest can be less than helpful when applying them. The homeless person had the right to necessity even though sleeping outside served no greater public good. Also, in the cocaine smuggling duress case, it is not clear that he was serving the greater good by smuggling cocaine.

Another distinction is free will in necessity versus coercion in duress. But either can be described as voluntary or involuntary depending on which facts you stress.

A better way to think about the distinction might be to focus on the paradigmatic case. In duress, there is a third person "holding a gun to your head" in some way, demanding that you commit the crime. The cocaine smuggling case fits under this category, for example. The prison escape case also makes sense as necessity then, because the prisoner wasn’t demanding the D commit the crime. Prisoner escape cases have been particularly problematic, however.

In addition, there are some situations which don’t fall into either – situational distress, as in the lifeboat situation, where you push off another passenger to keep the boat from sinking. The source of the necessity is not coming from the other person, but it doesn’t fit necessity either. In CL, necessity is not a defense to homicide anyway. Under the MPC, there may be a defense, maybe not. Maybe the D would have access to necessity under the MPC, since it is better to have one person die and the rest to survive. There is some literature by the commentators suggesting that there ought to be some kind of defense for these situations in which the D must make a difficult choice.

See doctrinal elements of duress under CL and MPC given on the board. They are similar in that there is a threat of physical force coming from some other human being. You don’t get the defense if it is blackmail, or mental/psychological coercion, say. Under CL, the threat has to be imminent death or great bodily harm. The MPC requirement is much broader. Another difference is with respect to the fault provision. The CL is much more black and white. Under the MPC, it is more nuanced. You lose the defense if reckless, but if negligent, you still get a defense in crimes involving such. The other major difference is whether it is a defense to homicide. See Regina v. Howe, overturning the Lynch case. This is representative of the American CL rule, but not the MPC. Under the MPC duress could be a defense to homicide, as long as the other elements are met. The last difference is that in CL, duress and necessity are mutually exclusive, under MPC both can apply.

Today we talk about intoxication. See the Commonwealth v. Graves case. (Facts of the case are recited.) The question on appeal is whether the trial court erred in not giving instructions on the inability to form intent, and by excluding expert witness testimony on this point. The trial court was relying on the Tarver ruling, which the appeal court overrules in this opinion. The old rule was that intoxication could lower the degree of guilt in homicide, but because there are no degrees in burglary, it could not apply here. If a specific intent crime does require a mens req element, the defense can offer up evidence which negates this element of crime. This is not making intoxication into an affirmative defense, you are not creating a excuse or justification, as in duress or necessity. The argument is that the crime has not been committed if there is no meeting of the mens rea. The dissent thinks that there is no practical difference. Part of the debate is over what it is that the court is actually doing. The majority says they are simply recognizing a pre-existing rule, not creating a new, separate affirmative defense. The dissent thinks that in essence, it really is a way of creating a new affirmative defense, it will allow defendants to get drunk in order to commit a crime.

The CL opinion has changed on this, see the notes. Under CL, the older position was that involuntary intoxication was irrelevant. From that opinion there emerged a newer opinion, as represented by the appellate court in Graves. It makes a distinction between specific intent crimes and general intent crimes. Evidence can be introduced to negate mens rea when talking about specific intent crimes, but not general intent crimes. Dressler raises the question of whether this distinction makes any sense. Suppose the D is so intoxicated that they are incapable of making any intent whatsoever? The logic suggests that this distinction does not make sense. The response is that this is a bit of a compromise as a practical matter, we generally give more leeway to D’s in specific intent crimes, and the mens rea standard is higher for specific intent crimes. Or, the fact that you got intoxicated voluntarily actually satisfies the general intent requirement (maybe, other students disagree). Or more generally, the assumption of unlawful intent makes sense at the general intent level, but must still be proven for specific intent crimes.

In the oldest CL, intoxication was actually an aggravating condition. The newer position is one of compromise. It also involves issues of time-framing, wherein the further back in time we look to include the voluntary onset of intoxication, the more likely we are to hold the D responsible.

The materials also make it clear that, in a number of jurisdictions, the very latest position has been to restrict the use of intoxication evidence. There has been a return to the old position, because of the overriding public policy considerations promoting by MADD, Nancy Reagan and others.

One of the questions raised by Dressler is whether barring intoxication evidence presents a constitutional problem. See the note on page 583 dealing with the Montana statute. In Egelhoff, Scalia rejects the constitutional argument. The argument that it is unconstitutional is that due process requires the prosecution to prove the elements beyond a reasonable doubt. The counter-argument from Scalia is that this burden still exists, it’s just that the defense can’t use evidence of intoxication to negate the mens rea element. It is just a change in evidentiary rules disallowing certain evidence, which happens all the time. He does acknowledge that the rule makes the burden "easier to bear", but it sill exists. Ginsberg says that the state is simply redefining the crime of homicide.

So where it is admissible, it goes to specific intent. It can also be used as a defense to any crime, in the case of "settled insanity". Long term drug use has caused a person to have long-term, damaged judgement beyond the mere taking of the drug. Most jurisdictions recognize this as different from ordinary intoxication, but not all jurisdictions accept this (see the excerpt from the Oklahoma court, which is in the minority here).

Involuntary intoxication is treated quite differently. The reason why goes back to the time framing argument. With respect to somebody’s moral responsibility or blameworthiness, we are more willing to blame the person who voluntarily intoxicates themselves. We have a separate body of laws dealing with involuntary intoxication.

See City of Minneapolis v. Altimus. The D had been prescribed Valium, which apparently caused him to become delusional. Involuntary intoxication takes four types: Coerced intoxication, pathological intoxication, intoxication by innocent mistake, and unexpected intoxication resulting from the ingestion of a medically prescribed drug. The last applies more to prescription medication, where pathological applies to not-prescribed drugs, e.g. an unusual reaction to alcohol. Under this test, should the defendant have gotten the instruction? The elements of unexpected intoxication are 1) The D must not know or have reason to know that the prescribed drug is likely to have an intoxicating effect; 2) The prescribed drug is the cause of the intoxication; 3) The D is temporarily insane as a cause of the intoxication.

Involuntary intoxication is considered an affirmative defense. Most jurisdictions require the defense to show temporary insanity. This is different from the negation of mens rea, but you could also use this as a prima facie case defense to disprove mens rea.

How does the MPC deal with this? Section 2.08 says in subsection 1, intoxication is not a defense unless it negatives an element of the defense, except as provided in subsection 4. So it is a prima facie defense. Subsection 2 says that when recklessness/negligence is the required mens rea, intoxication is immaterial. See the hypo in the book where the defendant is drunk and driving recklessly, says he didn’t realize he was being careful because of his intoxication. The MPC says this is not a defense. Under the CL, it depends on whether the requirement of recklessness is general or specific intent. It would probably be treated as general intent, because it doesn’t require you to have a particular intent on your mind at the time. You could argue the other way, saying that reckless involves a conscious awareness that there is a risk. But the case law tends to go the other way, and says that evidence of recklessness can’t be negated by intoxication, so it agrees with the MPC.

In Subsection 4 on involuntary intoxication deals with it as an affirmative defense if the D can’t appreciate the criminality or lawlessness, tracking the substantive requirements for the insanity defense. So on the one hand, you can use evidence of intoxication (voluntary or involuntary) to attack the mens rea element, and if you can’t prove that the intoxication was innocent you can use it as an affirmative defense providing you can prove that you were temporarily insane.