Comment

This chapter addresses jury instructions concerning the legal doctrines criminal defendants can rely on to avoid conviction despite the state’s satisfactory proof of the elements of the offense. These are traditionally and somewhat uncritically spoken of as “defenses.”

The Committee considered the extent to which its task might be facilitated by careful categorization of these doctrines.

Traditionally, criminal law drew a conceptual distinction between “excuses” and “justifications.” See Wayne LaFave, Substantive Criminal Law § 9.01(a) (5th ed. 2010), relying heavily on Paul H. Robinson, Criminal Law Defenses (1984). Doctrines of justification involve a conclusion that the act committed by the defendant was “justified” and thus not wrongful conduct at all. Doctrines of excuse, in contrast, assume that the conduct was wrongful but establish (if applicable) that the defendant has an excuse for engaging in the wrongful conduct and thus is not blameworthy. George E. Dix & M. Michael Sharlot, Criminal Law: Cases and Materials 754–55 (6th ed. 2008). At common law, the distinction between excuse and justification had important consequences. This is seldom if ever the case under modern law generally. See LaFave at § 9.01(a).

There is considerable dispute about how to best or most accurately categorize defenses under modern criminal law in light of the relevance to many defenses of the accused’s belief. For example, a killing may be found noncriminal because the killer accurately knew he had to take the life of the victim to prevent the victim from wrongfully taking his. The doctrine leading to this result is clearly a justification. But a killing may also be found noncriminal because the killer wrongfully believed he had to take the life of the victim to prevent the victim from wrongfully taking his. Whether the doctrine leading to this result is a justification or rather an excuse (based on the killer’s mistaken perception) is less clear.

The American Law Institute’s Model Penal Code contributed to the confusion by devoting an article (article 3) to “General Principles of Justification.” This included “choice of evils,” self-defense, defense of others and of property, and some others. Another article (article 4) was clearly designed to deal with what traditionally would be called excuses. It was, however, called “Responsibility” and included only insanity and infancy. Other matters that would be regarded as excuses were included in article 2, titled “General Principles of Liability.” See Markus D. Dubber, Criminal Law: Model Penal Code 249–50 (2002). These matters included ignorance, mistake, intoxication, duress, and entrapment.

The Texas Penal Code compounds the confusion or at least the already tenuous relationship of legal doctrine to the traditional distinction between justifications and excuses.

In chapter 9, the Code purports to provide for what it calls “justifications.” These include necessity, public duty, self-defense, defense of others, defense of property, law enforcement, and “special relationships.” Chapter 8 seems designed to provide for what traditionally would be called excuses. Rather than use this term, however, the Code labels these as “general defenses to criminal responsibility.” Chapter 8 includes not only insanity—which in traditional terms clearly is an excuse rather than a justification—but also mistake of fact and law, duress, and entrapment.

For purposes of drafting jury instructions, it is doubtful that it is important whether the legal doctrine relied on by a defendant is one of excuse, justification, or some combination of these. What is important is separating the defense from the elements of the charged offense, identifying the facts that the defense puts into contest, and placing the burden of proof on those elements.

With regard to burdens of proof, the Model Penal Code was uncertain. By a rather complicated provision, it left to the courts to decide whether particular matters of excuse or justification were so peculiarly within the knowledge of criminal defendants that the defendant could fairly be required to adduce supporting evidence. Model Penal Code § 1.12(3) (Proposed Official Draft 1962).

The Texas Penal Code more specifically and extensively addresses the burdens of production and proof on defensive matters. This is covered in Code chapter 2. Chapter 2 distinguishes among (1) elements of the offense, (2) exceptions, (3) defenses, (4) affirmative defenses, and (5) grounds of defense in a penal law not plainly labeled in accordance with chapter 2 of the Penal Code.

Under chapter 2, the allocation of the burden of proof is not determined by the label attached to a doctrine. All “justifications” are treated as “defenses.” See Tex. Penal Code § 9.02. This determines that the burden of proof is on the state. But not all “general defenses to criminal responsibility” in chapter 8 are defenses in this sense. For example, insanity and duress are affirmative defenses.

Chapter 2 also refers to “[a] ground of defense in a penal law that is not plainly labeled in accordance with this chapter.” Tex. Penal Code § 2.03(e). Such a ground of defense “has the procedural and evidentiary consequences of a defense.” Tex. Penal Code § 2.03(e).

The case law introduces other terms. In Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), the court of criminal appeals referred to “defensive issues” and “defensive theories,” apparently as distinguished from “statutory defense[s].”

Case law earlier referred to the so-called “diminished capacity” rule or doctrine as a “failure-of-proof defense.” Penry v. State, 903 S.W.2d 715, 769 (Tex. Crim. App. 1995) (quoting Robinson, § 64(a) at 276). Accord Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005) (“[T]he diminished-capacity doctrine at issue in this case is simply a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.”).

LaFave has explained the term failure-of-proof defense as follows:

LaFave at § 9.1(a)(1) (quoting Robinson § 21).

The Committee concluded that to achieve its purposes it need not worry about distinctions between or among justifications, excuses, defenses to criminal responsibility, and the like. Rather, it focused on distinguishing (1) failure-of-proof defenses, (2) defenses generally, and (3) affirmative defenses. Both defenses generally and affirmative defenses (but not failure-of-proof defenses) put into contest matters not addressed in the definition of the charged offense. Only affirmative defenses place the burden of proof on the defendant.