The crime and not the act itself.

An Excuse Defenses is another defense that an accused may use to relieve him from criminal liability.  Excuse defenses are to be distinguished from justification defenses since the former pertains to the defect in the actor of the crime and not the act itself.  Excuse defenses exempt the accused from punishment because of certain circumstances that makes the accused not blameworthy for his conduct.  Thus, even if the conduct is criminal and unlawful, the crime cannot be imputed to the accused simply because there is wanting in the agent of the crime any of the conditions that make the act voluntary.

The basis for exempting the accused from criminal liability is that there is an absence of willful intent in the commission of the crime on the part of the agent of the crime.  It must be stressed that willful intent is one of the elements of a crime.

One of the common excuse defenses is insanity.  Insanity excuses a person from criminal liability because insane people are unable to control their actions or appreciate the criminality of their actions due to mental defect or illness.  As such, they should not be held criminally liable.  The concept of insanity however is not a medical term.  Insanity for purpose of excusing the accused from criminal liability means that an individual lacks the mental capacity to form the intent to commit a crime.  Since intent, generally, is an indispensable element of a crime, such individuals who lack such mental capacity at the time of the commission of the crime are said to be legally insane.

The concept of insanity has evolved since it was first used as a defense in 1843 in the case of Daniel M’Naghten, the accused who attempted to assassinate the prime minister of Britain who was later acquitted on the ground of insanity. In this case, the court said that a mentally incapacitated person who admitted to the commission of a crime would be found not guilty of insanity as such a person’s delusion is so powerful that he is “incapable of appreciating his surroundings” (Angela Jarvis, p.1).  Thus, it was incumbent upon the defense to prove that the person’s delusion “either robbed the defendant of the ability to understand his actions or it deprived the defendant of the ability to appreciate the wrongfulness, or illegality, of his actions” (Angela Javis, p.1).

In view of the restrictive definition given to the concept of insanity, it was subsequently expanded in the case of Durham v. United States, 94 US App D.C. 288, where the Supreme Court declared a person insane if he would not have committed the criminal act but for the existence of a mental disease or defect.  According to legal experts, this definition was too lenient.  Thus, in the case of Brawner v. United States, 471 F.2d 969, the court tried to adopt a compromise between the two early definitions and adopted proposed Model Penal Code which declared that a defendant is insane if “at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

For the defense, convincing the jury that the accused, at the time of the commission of the crime was insane is very difficult.  They have to present such evidence to allow a reasonable jury to find that insanity has been established with “convincing clarity” (David Beneman, p.11).  Yet, this defense is recognized by law and by existing jurisprudence.

Entrapment is a defense an accused may invoke to relieve him of criminal liability.  This is based on the principle that the “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute” Jacobson v. United States, 503 U.S. 540, (1992).

The defendant to successfully invoke entrapment must prove two elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct.  Based on the decisions of the Supreme Court in cases involving entrapment, inducement is the most important ingredient.  However, even if inducement has been shown, an accused may still be held liable if the prosecution successfully shows that the accused with or without the inducement is predisposed to committing the crime.  The purpose behind this is that an accused who is predisposed to commit the crime, regardless of the government’s participation should not be relieved of his responsibility (David Beneman, p.9).  Thus, for an accused he must successfully prove that except for the acts of the police officers he would not have committed the criminal act to relieve him from criminal liability on the ground of entrapment.

Facts: Jacobson ordered and received from a bookstore two Bare Boys magazines containing photographs of nude pre-teen and teenage boys.  At the time, there was no federal law making such conduct illegal.  Subsequently, the Child Protection Act of 1984 was passed which made illegal the receipt through the mails of sexually explicit depictions of children.  After the law was passed, the government agency using different means attempted to explore Jacobson’s willingness to violate the Child Protection Act by frequently sending mails to him.

These agencies made it appear that they were legitimate organizations which were founded to protect and promote the sexual freedom and freedom of choice of their clients.  Jacobson was later arrested when he ordered a magazine depicting young boys engaged in sexual activities.  During trial he argued the defense of entrapment arguing that he was merely curious about what the organizations had referred to and that he did not expect to receive photographs of minors.  He was convicted in the lower court and the Court of Appeals.

Held: The Supreme Court declared that the prosecution failed to present evidence that will support its allegation that Jacobson was predisposed to violate the law.  It was the defendant who has successfully proved that he would not have done the crime were it not for the acts of the government agents who originated the criminal design, implanted the disposition to commit a criminal act and induced the commission of the crime for the government to prosecute.  The evidence shows that while Jacobson had the inclination towards pornography such is not criminal in nature.

Contrary to the allegations of the government agents, Jacobson did not know that the magazines was about minors and that the interview questionnaire responded to by Jacobson revealed that he was not predisposed to violate the Child Protection Act.  Based on the actions of the two government agents, they not only excited Jacobson’s interest in the material banned by law but also exerted pressure on him to obtain and read such materials.