Module 7 (Continued) Other Criminal Defenses
(Immunity as a Defense- Diplomatic Immunity)
Under some circumstances, persons who have committed crimes are exempt from prosecution for their actions, either temporarily or permanently. The basis for their claim to immunity might come from a federal or state statute, an international agreement, or in one case from the U.S. Constitution. The principle forms of immunity are discussed in this section.
Diplomatic Immunity
In 1972 the United States ratified the Vienna Convention on Diplomatic Relations, an international agreement on the status of diplomats stationed in a foreign country. More than a hundred other countries have ratified this Convention. Article 31.1 of the Convention states that a "diplomatic agent" shall enjoy full immunity from the criminal jurisdiction of the receiving state (in international law conventions, the word state means a "nation or country"). Article 37.1 extends this immunity to members of the diplomat's family. U.S. law (22 U.S.C. § 254(d)) states that any action brought against a person entitled to diplomatic immunity must be dismissed. Two recent federal cases illustrate the scope and limit of diplomatic immunity.
In the 2006 case of United States v. Kuznetsov,2 a federal district court denied diplomatic immunity to a Russian citizen employed by the United Nations in New York City. Although the defendant was at one time certified as a member of the Russian Federation Mission, and therefore entitled to immunity, when he became chairman of a UN committee the Russian Mission informed the State Department that the defendant was no longer part of the Mission. The court thus concluded that even though the defendant regarded himself as a "career Russian diplomat," during the years he worked for the UN, when the crimes he was charge with occurred, he was not a "diplomatic agent" and not entitled to immunity. The court also held the defendant lacked immunity under the United Nations Convention on Privileges and Immunities. That Convention applies only to "visiting foreign officials." The court concluded the defendant was not simply "visiting" the UN but was a full-time employee. As a result, the only immunity the defendant enjoyed under the Convention was immunity for acts done in his official capacity. This immunity can be waived by the secretary general of the UN, and it did in this case.
In the 2004 case of United States v. Al-Hamdi,3 a federal court of appeals held that the diplomatic immunity given to members of a diplomat's family ends at age 21. The Vienna Convention leaves it to member states to determine the extent of the family immunity, the court held, and since the State Department issued a regulation setting the 21 years of age limit (23 if enrolled in school), that regulation was conclusive on the issue. The defendant, 26 years old when indicted, was thus convicted of being in possession of a firearm by a nonimmigrant alien.
Diplomatic immunity may be waived by the diplomat's home country, and in the case of serious crimes, the U.S. government frequently requests that waiver. An example of this waiver can be seen in Van Den Borre v. State,4 in which Belgium waived immunity for a diplomat who was then convicted of a double murder.
Immunity for consular officers is not absolute, as it is for diplomats. Article 43 of the Vienna Convention provides that "[c]onsular officers … shall not be amenable to the jurisdiction of [the host nation] in respect to acts performed in the exercise of consular functions." Criminal acts not so performed expose the consular offices to prosecution. For example, in United States v. Cole,5
a consular officer was successfully prosecuted for smuggling money out of the United States in a diplomatic pouch. The court said the officer was not exercising consular functions.
In the 2006 case of United States v. Kuznetsov,2 a federal district court denied diplomatic immunity to a Russian citizen employed by the United Nations in New York City. Although the defendant was at one time certified as a member of the Russian Federation Mission, and therefore entitled to immunity, when he became chairman of a UN committee the Russian Mission informed the State Department that the defendant was no longer part of the Mission. The court thus concluded that even though the defendant regarded himself as a "career Russian diplomat," during the years he worked for the UN, when the crimes he was charge with occurred, he was not a "diplomatic agent" and not entitled to immunity. The court also held the defendant lacked immunity under the United Nations Convention on Privileges and Immunities. That Convention applies only to "visiting foreign officials." The court concluded the defendant was not simply "visiting" the UN but was a full-time employee. As a result, the only immunity the defendant enjoyed under the Convention was immunity for acts done in his official capacity. This immunity can be waived by the secretary general of the UN, and it did in this case.
In the 2004 case of United States v. Al-Hamdi,3 a federal court of appeals held that the diplomatic immunity given to members of a diplomat's family ends at age 21. The Vienna Convention leaves it to member states to determine the extent of the family immunity, the court held, and since the State Department issued a regulation setting the 21 years of age limit (23 if enrolled in school), that regulation was conclusive on the issue. The defendant, 26 years old when indicted, was thus convicted of being in possession of a firearm by a nonimmigrant alien.
Diplomatic immunity may be waived by the diplomat's home country, and in the case of serious crimes, the U.S. government frequently requests that waiver. An example of this waiver can be seen in Van Den Borre v. State,4 in which Belgium waived immunity for a diplomat who was then convicted of a double murder.
Immunity for consular officers is not absolute, as it is for diplomats. Article 43 of the Vienna Convention provides that "[c]onsular officers … shall not be amenable to the jurisdiction of [the host nation] in respect to acts performed in the exercise of consular functions." Criminal acts not so performed expose the consular offices to prosecution. For example, in United States v. Cole,5
a consular officer was successfully prosecuted for smuggling money out of the United States in a diplomatic pouch. The court said the officer was not exercising consular functions.
Witness Immunity
Federal and state prosecutors have the power to subpoena witnesses to give testimony to aid the prosecutors in investigations of crimes. Legislative bodies have a similar power. Under the Fifth Amendment, a witness cannot be compelled to testify against himself. A witness summoned to testify may thus refuse to testify by invoking his Fifth Amendment rights. To resolve this conflict, both the federal government and the states have passed various immunity statutes, under which a witness can be given immunity from prosecution and be compelled to answer questions that might be incriminating.
The principal federal immunity statute is 18 U.S.C. § 6002, which requires a witness to testify if called before a court, federal agency, or legislative body, on the condition his testimony may not be used against him in a criminal prosecution. Because of statements made by the Supreme Court in the 1895 case of Counselman v. Hitchcock, 142 U.S. 47, earlier versions of section 6002 had been interpreted as grants of total or transactional immunity . Under transactional immunity the witness cannot be prosecuted for any offense related to the subject matter of his testimony.
Congress was concerned that total immunity hampered federal efforts to combat crime. In 1970 Congress enacted the current version of section 6002, which grants only use immunity . Under use immunity, the statements made by the witness may not be used in subsequent prosecutions, but the witness can be prosecuted for the crimes about which they testified if other evidence is used to convict them. The U.S. Supreme Court upheld the constitutionality of section 6002 in Kastigar v. United States, 406 U.S. 441 (1972), holding that the statute gives the same protection as the Fifth Amendment, and that is all the protection Congress is required to give a witness.
Many states have enacted both transactional and use immunity statutes, with the prosecution deciding which immunity to request. For example, Illinois has a transactional immunity statute, 725 ILCS 5/106-1, that states after a request by the State a court "may order" a witness to testify by granting immunity from prosecution for the crimes about which the witness testifies. The use immunity statute, 725 ILSC 5/106-2.5, provides that after a request by the State, the court "shall order" a witness to testify with immunity from use of his testimony. In People v. Ousley, 919 N.E.2d 875 (Ill. 2009), the Illinois Supreme Court reversed a decision of a district court judge who refused the prosecution's request to grant use immunity. In Ousley, three defendants were charged with murder, and the prosecution requested a grant of use immunity to one of the defendants so he could testify against the other two defendants. The trial court refused the request, stating concerns about the effect such testimony might have on the rights of the other defendants. On appeal, the Illinois Supreme Court held that the use immunity statutory was mandatory, and as a result the prosecution's request for an order granting use immunity should have been granted.
The principal federal immunity statute is 18 U.S.C. § 6002, which requires a witness to testify if called before a court, federal agency, or legislative body, on the condition his testimony may not be used against him in a criminal prosecution. Because of statements made by the Supreme Court in the 1895 case of Counselman v. Hitchcock, 142 U.S. 47, earlier versions of section 6002 had been interpreted as grants of total or transactional immunity . Under transactional immunity the witness cannot be prosecuted for any offense related to the subject matter of his testimony.
Congress was concerned that total immunity hampered federal efforts to combat crime. In 1970 Congress enacted the current version of section 6002, which grants only use immunity . Under use immunity, the statements made by the witness may not be used in subsequent prosecutions, but the witness can be prosecuted for the crimes about which they testified if other evidence is used to convict them. The U.S. Supreme Court upheld the constitutionality of section 6002 in Kastigar v. United States, 406 U.S. 441 (1972), holding that the statute gives the same protection as the Fifth Amendment, and that is all the protection Congress is required to give a witness.
Many states have enacted both transactional and use immunity statutes, with the prosecution deciding which immunity to request. For example, Illinois has a transactional immunity statute, 725 ILCS 5/106-1, that states after a request by the State a court "may order" a witness to testify by granting immunity from prosecution for the crimes about which the witness testifies. The use immunity statute, 725 ILSC 5/106-2.5, provides that after a request by the State, the court "shall order" a witness to testify with immunity from use of his testimony. In People v. Ousley, 919 N.E.2d 875 (Ill. 2009), the Illinois Supreme Court reversed a decision of a district court judge who refused the prosecution's request to grant use immunity. In Ousley, three defendants were charged with murder, and the prosecution requested a grant of use immunity to one of the defendants so he could testify against the other two defendants. The trial court refused the request, stating concerns about the effect such testimony might have on the rights of the other defendants. On appeal, the Illinois Supreme Court held that the use immunity statutory was mandatory, and as a result the prosecution's request for an order granting use immunity should have been granted.
Mistake or Ignorance of Fact as a Defense
The full scope of the Latin maxim Ignorantia legis neminem excusat ("Ignorance of the law excuses no one") may have caused Blackstone to change the phrase in his Commentaries (4 Commentaries, 27) to "Ignorance of the law which every one is bound to know, excuses no man." Blackstone's statement is a far better expression of the law, because courts will not allow a defendant who has committed an offense that is generally well known to the public to argue ignorance or mistake of that law.
Serious offenses, such as The full scope of the Latin maxim Ignorantia legis neminem excusat ("Ignorance of the law excuses no one") may have caused Blackstone to change the phrase in his Commentaries (4 Commentaries, 27) to "Ignorance of the law which every one is bound to know, excuses no man." Blackstone's statement is a far better expression of the law, because courts will not allow a defendant who has committed an offense that is generally well known to the public to argue ignorance or mistake of that law. Serious offenses, such as
Serious offenses, such as The full scope of the Latin maxim Ignorantia legis neminem excusat ("Ignorance of the law excuses no one") may have caused Blackstone to change the phrase in his Commentaries (4 Commentaries, 27) to "Ignorance of the law which every one is bound to know, excuses no man." Blackstone's statement is a far better expression of the law, because courts will not allow a defendant who has committed an offense that is generally well known to the public to argue ignorance or mistake of that law. Serious offenses, such as
Intoxication or Drugged Condition as a Defense
Voluntary intoxication or drugged condition as a defense to the commission of criminal acts is frequently raised unsuccessfully. Crimes that require only a general intent, that is, only the intent to do the act, do not permit an intoxication defense. For example, in the 2001 case of United States v. Sewell,10 a defendant charged with robbery attempted to defend by offering evidence that he was high on crack cocaine when he committed the robbery. The court concluded that robbery was a general intent crime and rejected the defense.
Crimes that require a specific intent as to one or more elements of the crime do permit a defense based on voluntary intoxication or drugged condition. To assert the intoxication defense, the defendant must be charged with a specific intent crime, such as intentional murder, kidnapping, or arson. The degree of intoxication must be so great "as to render (the defendant) incapable of purposeful or knowing conduct."11
State v. Sexton, discussed in Chapter 5, is an example of this use of a drugged condition.
Even if the intoxication defense successfully negates a specific intent, the defendant may still be convicted of a lesser offense requiring only general intent. For example, although defendants may lack the specific intent to commit murder, they could be convicted of a lesser, general intent crime, such as second-degree murder or manslaughter.12
A few states have eliminated the defense of voluntary intoxication entirely. Montana not only did away with the defense of intoxication but also prohibited any consideration of the defense of intoxication by a fact finder (judge or jury). The Montana law was challenged before the U.S. Supreme Court in 1996. In the case of Montana v. Egelhoff, the Supreme Court found that the Montana law did not violate due process protections of the U.S. Constitution.13
The involuntary intoxication or drugged condition can be a defense to a criminal charge if the trier of fact (the jury or judge) believes the defendant's story, supported by credible evidence, that (1) he or she did not voluntarily take the drug or intoxicant and instead was tricked or forced into taking the substance and (2) the defendant became so intoxicated or drugged that he or she was not able to mentally form the specific intent necessary for the crime charged but was physically able to commit the crime.
Crimes that require a specific intent as to one or more elements of the crime do permit a defense based on voluntary intoxication or drugged condition. To assert the intoxication defense, the defendant must be charged with a specific intent crime, such as intentional murder, kidnapping, or arson. The degree of intoxication must be so great "as to render (the defendant) incapable of purposeful or knowing conduct."11
State v. Sexton, discussed in Chapter 5, is an example of this use of a drugged condition.
Even if the intoxication defense successfully negates a specific intent, the defendant may still be convicted of a lesser offense requiring only general intent. For example, although defendants may lack the specific intent to commit murder, they could be convicted of a lesser, general intent crime, such as second-degree murder or manslaughter.12
A few states have eliminated the defense of voluntary intoxication entirely. Montana not only did away with the defense of intoxication but also prohibited any consideration of the defense of intoxication by a fact finder (judge or jury). The Montana law was challenged before the U.S. Supreme Court in 1996. In the case of Montana v. Egelhoff, the Supreme Court found that the Montana law did not violate due process protections of the U.S. Constitution.13
The involuntary intoxication or drugged condition can be a defense to a criminal charge if the trier of fact (the jury or judge) believes the defendant's story, supported by credible evidence, that (1) he or she did not voluntarily take the drug or intoxicant and instead was tricked or forced into taking the substance and (2) the defendant became so intoxicated or drugged that he or she was not able to mentally form the specific intent necessary for the crime charged but was physically able to commit the crime.
The Defense of Double Jeopardy
The Fifth Amendment of the U.S. Constitution provides that "no person … shall … for the same offense … be twice put in jeopardy of life or limb." In the 1978 case of United States v. Scott, the U.S. Supreme Court, quoting other Supreme Court cases, held that the Double Jeopardy Clause ensures that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.31
Therefore, double jeopardy means that a person who has been acquitted by a judge or a jury may not be tried again, even if subsequent investigation reveals evidence that proves conclusively that the defendant is guilty. If a defendant is found not guilty because of insanity, the person may not be tried again for the same crime, even if the person is later found sane and normal.
Prosecution by Both State and Federal Governments
Because most crimes are crimes only against a state, only the state may prosecute. Some crimes, however, are offenses not only against the state but also the federal government. The robbery of a federally insured bank or savings and loan association is an example.
The question of whether the state and federal governments may both prosecute for such offenses has come before the U.S. Supreme Court more than a dozen times. Justice Oliver Wendell Holmes, in noting that both state and federal prosecution in such cases is not in violation of the Fifth Amendment, stated that the rule "is too plain to need more than a statement."35
The reasoning is presented in the 1959 case of Bartkus v. Illinois as follows:
Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the law of both. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averted that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.36
Therefore, double jeopardy means that a person who has been acquitted by a judge or a jury may not be tried again, even if subsequent investigation reveals evidence that proves conclusively that the defendant is guilty. If a defendant is found not guilty because of insanity, the person may not be tried again for the same crime, even if the person is later found sane and normal.
Prosecution by Both State and Federal Governments
Because most crimes are crimes only against a state, only the state may prosecute. Some crimes, however, are offenses not only against the state but also the federal government. The robbery of a federally insured bank or savings and loan association is an example.
The question of whether the state and federal governments may both prosecute for such offenses has come before the U.S. Supreme Court more than a dozen times. Justice Oliver Wendell Holmes, in noting that both state and federal prosecution in such cases is not in violation of the Fifth Amendment, stated that the rule "is too plain to need more than a statement."35
The reasoning is presented in the 1959 case of Bartkus v. Illinois as follows:
Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the law of both. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averted that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.36
Entrapment and Outrageous Government Conduct as Defenses
The defense of entrapment was recognized by the U.S. Supreme Court in the 1932 case of Sorrells v. United States.43
In Sorrells, the Supreme Court ruled that entrapment occurs "when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they (the Government) may prosecute." The defense of entrapment therefore has two elements: (1) improper government inducement of the crime and (2) lack of predisposition on the part of the defendant to engage in the criminal conduct.
Defendants seeking to use the defense of entrapment carry the initial burden of coming forward with evidence of both the government's improper inducement and the defendant's lack of predisposition to commit the alleged offense. If a defendant makes a showing of improper inducement by the government and lack of predisposition by the defendant, the burden then shifts to the government. The government must then show The U.S. Supreme Court ruled in the 1988 case of Mathews v. United States45
that a defendant "is entitled to an entrapment instruction (to a jury) whenever there is sufficient evidence from which a reasonable jury could find entrapment."
Courts throughout the United States have long recognized that law enforcement officers (or their agents) can properly create ordinary opportunities for a person to commit an offense if the criminal intent or willingness originated in the mind of the defendant. The fact that the officer afforded the opportunity or the facility for the defendant to commit the crime in order to obtain evidence does not constitute entrapment. In Hampton v. United States, 425 U.S. 484 (1976), the Court held the entrapment defense was not available to a defendant who sold illegal drugs to undercover police officers, even though a government informer, acting for the government, supplied the drugs sold. The Court said the defendant must prove he did not have the criminal intention until it was implanted by the agent.
A sting operation is not improper inducement to commit a crime if it merely provides an opportunity to commit a crime. Thus, in illegal drug cases the Supreme Court held in United States v. Russell in 1973 that infiltration into a drug ring, and supplying some of the items needed to produce the illegal drugs, does not amount to entrapment.46
In Sorrells, the Supreme Court ruled that entrapment occurs "when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they (the Government) may prosecute." The defense of entrapment therefore has two elements: (1) improper government inducement of the crime and (2) lack of predisposition on the part of the defendant to engage in the criminal conduct.
Defendants seeking to use the defense of entrapment carry the initial burden of coming forward with evidence of both the government's improper inducement and the defendant's lack of predisposition to commit the alleged offense. If a defendant makes a showing of improper inducement by the government and lack of predisposition by the defendant, the burden then shifts to the government. The government must then show The U.S. Supreme Court ruled in the 1988 case of Mathews v. United States45
that a defendant "is entitled to an entrapment instruction (to a jury) whenever there is sufficient evidence from which a reasonable jury could find entrapment."
Courts throughout the United States have long recognized that law enforcement officers (or their agents) can properly create ordinary opportunities for a person to commit an offense if the criminal intent or willingness originated in the mind of the defendant. The fact that the officer afforded the opportunity or the facility for the defendant to commit the crime in order to obtain evidence does not constitute entrapment. In Hampton v. United States, 425 U.S. 484 (1976), the Court held the entrapment defense was not available to a defendant who sold illegal drugs to undercover police officers, even though a government informer, acting for the government, supplied the drugs sold. The Court said the defendant must prove he did not have the criminal intention until it was implanted by the agent.
A sting operation is not improper inducement to commit a crime if it merely provides an opportunity to commit a crime. Thus, in illegal drug cases the Supreme Court held in United States v. Russell in 1973 that infiltration into a drug ring, and supplying some of the items needed to produce the illegal drugs, does not amount to entrapment.46
Sting Operations
Stings to test the integrity of law enforcement officers. Police departments test themselves to make sure officers are acting with integrity. The New York Police Department, which has over 30,000 officers, conducts 600 or more stings designed to test those officers each year. The FBI also does this, but does not report the number and kind of stings it conducts each year.
Although law enforcement officers may create and present the usual and ordinary opportunities for a person to commit a crime, they may not use excessive urging, inducement, temptations, or solicitations to commit a crime. For example, in the early case of Sherman v. United States, 356 U.S. 369 (1958), the Court held that actions by a government informant to entice a drug addict to return to drug use and supply drugs to the informant constituted entrapment.
Although law enforcement officers may create and present the usual and ordinary opportunities for a person to commit a crime, they may not use excessive urging, inducement, temptations, or solicitations to commit a crime. For example, in the early case of Sherman v. United States, 356 U.S. 369 (1958), the Court held that actions by a government informant to entice a drug addict to return to drug use and supply drugs to the informant constituted entrapment.