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Chapter 1 – 1.10 Common Defenses to Criminal Actions

CRIMINAL LAW

 

1.10 Common Defenses To Criminal Actions

               

                It should be noted at the outset that at the common law, there were no defenses to criminal charges except the denial of guilt. Through the development of statutory law and the modern develop­ment of case law, we now take a somewhat enlightened view of criminal conduct and provide for defenses other than the simple denial of guilt. The defendant is presumed innocent, and the denial of guilt puts the burden on the state to prove the defendant's guilt.  The assertion of all other defenses, will be viewed as an affirmative defense and will require the defendant to establish its existence over a presumption or other testimony.  Outlined below are the most common defenses as­serted by persons charged with crimes against the state.

 

A. Denial of Guilt

 

                Although in most jurisdictions well over 80% of individuals charged with crimes ultimately enter a plea of guilty or no contest to the offense, the remainder plead not guilty and demand a jury trial. The effect

of a "not guilty" plea is to cause the State to prove, beyond and to the exclusion of every reasonable doubt, to the satis­faction of each and every juror, that the defendant did in fact com­mit the crime.

                The State always has the burden of proof, thus the defendant never need take the stand nor offer evidence in his defense, or evi­dence tending to show his innocence. Juries are instructed that they are not to consider the fact that the defendant did not take the stand in a criminal case in reaching a verdict.

 

DEFENSES TO CRIMINAL CHARGES

 

DEFENSES

A.DENIAL OF GUILT

B.INSANITY

C.INTOXICATION

D.IMMUNITY

E.STATUTE OF LIMITATIONS

F.CONSENT

G.ENTRAPMENT

H.DURESS

I.SELF DEFENSE (JUSTIFIABLE USE OF FORCE)

J.MISTAKE OF FACT

K.PRE-ACCUSATION DELAY

L.SPEEDY TRIAL

M.DOUBLE JEOPARDY

N.MENTAL INCOMPETANCE

O.ALIBI

 

ANAFFIRMATIVE DEFENSEIS ANY DEFENSE ASSERTED WHICH REQUIRES THE DEFENDANT TO COME FORWARD WITH PROOF EITHER TO OVERCOME A PRESUMPTION IN THE LAW (INSANITY) OR TO ESTABLISH A FACT (CONSENT).

 

B. Insanity

 

                Insanity is an affirmative defense. The law presumes that each individual charged with a crime was sane at the time the crime was committed. If the defense asserts the defense of insanity, the defense has the burden of proving the defendant insane at the time of the act.  In Florida the issue of insanity is a factual matter to be determined by the jury.  The defendant who is insane at the time of the act, could not have formed the intent to commit the crime charged, and therefore should be found not guilty. 

 

                Throughout the United States, there are four basic tests of in­sanity :

 

                1. The M'Naghten Rule‑‑ the most widely accepted test of insanity with relation to criminal acts is the M'Naghten Rule. This rule states that if, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act, and did not know that what he was doing was wrong, he was legally insane and not responsi­ble for his act. This is commonly known as the right-wrong test of insanity. It is this test which is used under the laws of the State of Florida.

                2. The Irresistible Impulse Test ‑‑ This test for insanity is that if, by reason of a mental disorder, the defendant has so far lost the power to choose between right and wrong that he is unable to avoid doing the act in question, then he is insane.

                3. The Substantial Capacity Test‑‑Jurisdictions adhering to the substantial capacity test hold that an individual is not responsible for his criminal acts, if, at the time of the act, he is (1) unable to appreciate the wrongfulness of the act, or (2) unable to conform his conduct to the requirements of the law.

                4. The Durham Rule‑‑ Under the test in the Durham Rule, the accused is not criminally responsible if his criminal act was the result of mental disease or mental deficiency.

 

                All of the tests concerning insanity are based on the premise that the defendant is unable, due to some mental deficiency, to form the intent necessary to commit the crime. We are concerned with the de­fendant's mind at basically two periods of time:

 

                1.             At the time the act is committed‑‑If an individual is ruled to be insane at the time the act is committed, it is a com­plete defense to his act because one of the essential crimi­nal elements‑‑that of criminal intent‑‑is lacking.

                2.             At the time of trial‑‑On the other hand, if the defendant is ruled to be sane at the time of the act, butincompetent at the time of trial, he is unable to assist his counsel in his defense and no criminal trial may proceed until he is ruled competent to stand trial.

 

                The U.S. Supreme Court in the case of Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896,43 L. Ed. 2d 103 (1975) reversed the rape conviction of a Missouri man who was tried in absentia after he shot himself and was hospitalized during the course of the trial.

                The defendant had been charged with rape, and shot himself at the conclusion of the first day of trial. The trial judge denied a motion for mistrial, ruling that the defendant's absence from the trial was voluntary. A motion for new trial was rejected, and that ruling was affirmed by the Missouri Supreme Court. The defendant introduced evidence indicating that two psychiatrists testified he was in need of treatment. The Supreme Court reversed the conviction because of doubt as to the mental competence of the accused at the time of trial. The court stating that "the record reveals a failure to give proper weight to the information suggesting incompetence which came to light during the trial. Whatever the relationship between mental ill­ness and incompetence to stand trial, in this case the bearing of the former on the latter was sufficiently likely that, in light of the evi­dence of petitioner's behavior including his suicide attempt, and there being no opportunity without his presence to evaluate that bearing in fact, the correct course was to suspend the trial until such an evaluation could be made."

                A defendant relying on the defense of insanity in Florida may petition the trial court for a sanity inquisition. If the sanity inquisi­tion is granted, at least two and usually three, psychiatrists or psychologists are appointed by the court to examine the defendant relat­ing to his competency to stand trial, and with regard to his sanity at the time of the offense. The issue of insanity is a factual issue to be determined by the jury at the time of trial. The jury may accept or reject the opinions of the experts. The testimony of lay (civilian) witnesses can be sufficient to convince the jury that the experts are wrong.

                A discussion of the de­fense of insanity was enunciated by the United States Court of Appeals for the District of Columbia in the case of Durham v. United States, 214 F. 2d 862 (D.C. Cir. 1954), in which the Court discussed the history of the M'Naghten Rule and adopted for the District of Columbia what became known as the Durham Rule. The text of that decision follows:

 

BAZELON, Circuit Judge.

 

                                Monte Durham was convicted of housebreaking by the Dis­trict Court sitting without a jury. The only defense as­serted at the trial was that Durham was of unsound mind at the time of the offense. We are now urged to reverse the conviction (1) because the trial court did not correctly apply existing rules governing the burden of proof on the defense of insanity, and (2) because existing tests of cri­minal responsibility are obsolete and should be superseded.

 

                                Durham has a long history of imprisonment and hospital­ization. In 1945, at the age of 17, he was discharged from the Navy after a psychiatric examination had shown that he suffered `from a profound personality disorder which renders him unfit for Naval service.' In 1947 he pleaded guilty to violating the National Motor Vehicle Theft Act and was placed on probation for one to three years. He attempted suicide, was taken to Gallinger Hospital for obser­vation and was transferred to St. Elizabeth's Hospital, from which he was discharged after two months. In January of 1948, as a result of a conviction in the District of Colum­bia Municipal Court for passing bad checks, the District Court revoked his probation and he commenced service of his Motor Theft sentence. His conduct within the first few days in jail led to a lunacy inquiry in the Municipal Court where a jury found him to be of unsound mind. Up­on commitment to St. Elizabeth's, he was diagnosed as suffering from `psychosis with psychopathic personality.' After 15 months of treatment, he was discharged in July, 1949, as `recovered' and was returned to jail to serve the balance of his sentence. In June, 1950, he was conditionally released. He violated the conditions by leaving the District. When he learned of a warrant for his arrest as a parole violator, he fled to the `South and Mid­west obtaining money by passing a number of bad checks.' After he was found and returned to the District, the Pa­role Board referred him to the District Court for a lunacy inquisition, wherein a jury again found him to be of un­sound mind. He was readmitted to St. Elizabeth's in February, 1951. This time the diagnosis was `without men­tal disorder, psychopathic personality.' He was discharged for the third time in May, 1951. The housebreaking which is the subject of the present appeal took place two months later, on July 13, 1951.

 

                                According to his mother and the psychiatrist who exam­ined him in September 1951, he suffered from hallucina­tions immediately after his May 1951 discharge from St. Elizabeth's. Following the present indictment, in October 1951, he was adjudged of unsound mind in proceedings under S.4244 of Title 18 U.S.C., upon the affidavits of two psychiatrists that he suffered from `psychosis with psychopathic personality.' He was committed to St. Elizabeths for the fourth time and given subshock insulin therapy. This commitment lasted 16 months ‑‑ until February 1953‑‑when he was released to the custody of

                                the District Jail on the certificate of Dr. Silk, Acting Su­perintendent of St. Elizabeths, that he was `mentally competent to stand trial and . . . able to consult with counsel to properly assist in his own defense.' He was thereupon brought before the court on the charge in­volved here.

 

                                * * [material-omitted] * *

 

                                In Tatum v. United States we said, `When lack of mental capacity is raised as a defense to a charge of crime, the law accepts the general experience of mankind and presumes that all people, including those accused of crime, are sane.' So long as this presumption prevails, the prosecu­tion is not required to prove the defendant's sanity. But `as soon as "some evidence of mental disorder is intro­duced, . . . sanity, like any other fact, must be proved as part of the prosecution's case beyond a reasonable doubt." ' Here it appears that the trial judge recognized this rule but failed to find `some evidence.' We hold that the court erred and that the requirement of `some evi­dence' was satisfied.

 

                                In Tatum we held that requirement satisfied by consider­ably less than is present here. Tatum claimed lack of memory concerning the critical events and three lay wit­nesses testified that he appeared to be in `more or less of a trance,' or `abnormal,' but two psychiatrists testified that he was of `sound mind' both at the time of examina­tion and at the time of the crime. Here, the psychiatric testimony was unequivocal that Durham was of unsound mind at the time of the crime. Dr. Gilbert, the only expert witness heard, so stated at least four times. This crucial testimony is set out in the margin. Intensive questioning by the court failed to produce any retraction of Dr. Gil­bert's testimony that the `period of insanity would have embraced the date of July 13, 1951.' And though the pro­secution sought unsuccessfully in its cross- and re-cross ­examination of Dr. Gilbert to establish that Durham was a malingerer who feigned insanity whenever he was trapped for his misdeeds, it failed to present any expert testimony to support this theory. In addition to Dr. Gilbert's testi­mony, there was testimony by Durham's mother to the ef­fect that in the interval between his discharge from St. Eli­zabeths in May 1951, and the crime `he seemed afraid of people' and had urged her to put steel bars on his bedroom windows.

 

                                Apparently the trial judge regarded this psychiatric testi­mony as `no testimony' on two grounds: (1) it did not ade­quately cover Durham's condition on July 13, 1951, the date of the offense; and (2) it was not directed to Durham's capacity to distinguish right and wrong. We are unable to agree that for either of these reasons the psychiatric testi­mony could properly be considered `no testimony.'

 

                                (1) Following Dr. Gilbert's testimony that the condition in which he found Durham on September 3, 1951, was progressive and did not `arrive overnight,' Dr. Gilbert re­sponded to a series of questions by the court:

 

                                `Q. (Court). Then is it reasonable to assume that it is not possible to determinehow far this state of unsound mind had progressed by July 13th? Isn't that so? A. (Dr. Gilbert). As to the seriousness of the symptoms as compared with them and the time I observed him, that's true, except that his travels were based, according to his statement to me, on certain of the symptoms and his leaving Washington, his giving up his job and work and leaving the work that he had tried to do.

 

                                Q. But you can't tell, can you, how far those symptoms had progressed and become worse by the 13th of July? A. No, not how far they were, that is correct. ' (Emphasis Supplied).

                                Thereafter, when the prosecutor on recross asked Dr. Gil­bert whether he would change his opinion concerning Dur­ham's mental condition on July 13, 1951, if he knew that Durham had been released from St. Elizabeths just two months before as being of sound mind, the court inter­rupted to say: `Just a minute. The Doctor testified in answer to my question that he doesn't know and he can't express a definite opinion as to his mental condition on the 13th of July.' This we think overlooks the witness' unequivocal testimony on direct and cross-examination, and misconceives what he had said in response to ques­tioning by the court, namely, that certain symptoms of mental disorder antedated the crime, although it was im­possible to say how far they had progressed.

 

                                Moreover, any conclusion that there was `no testimony' re­garding Durham's mental condition at the time of the crime disregards the testimony of his mother. Her account of his behavior after his discharge from St. Elizabeths in May  was directly pertinent to the issue of his sanity at the time of the crime.

 

                                (2) On re-direct examination, Dr. Gilbert was asked whe­ther he would say that Durham `knew the difference be­tween right and wrong on July 13, 1951; that is, his ability to distinguish between what was right and what was wrong.' He replied: `As I have stated before, if the ques­tion of the right and wrong were propounded to him he could give you the right answer.' Then the court inter­rupted to ask:

 

                                `The Court. No, I don't think that is the ques­tion, Doctor‑‑not whether he could give a right answer to a question, but whether he, himself, knew the difference between right and wrong in connection with governing how own actions. . . . If you are unable to answer, why, you can say so: I mean, if you are unable to form an opinion.'

 

                                `The Witness. I can only answer this way: That I can't tell how much the abnormal thinking and the abnormal experiences in the form of halluci­nations and delusions‑‑delusions of persecution ‑‑had to do with his anti-social behavior.

 

                                `I don't know how anyone can answer that ques­tion categorically, except as one's experience leads him to know that most mental cases can give you a categorical answer of right and wrong, but what influence these symptoms have on ab­normal behavior or anti-social behavior‑‑.'

 

                                `The Court. Well, your answer is that you are un­able to form an opinion, is that it?'

 

                                `The Witness. I would say that is essentially true, for the reason that I have given.'

 

                                Later, when defense counsel sought elaboration from Dr. Gilbert on his answers relating to the right and wrong test, the court cut off the questioning with the admonition that `you have answered the question, Doctor.'

 

                                The inability of the expert to give categorical assurance that Durham was unable to distinguish between right and wrong did not destroy the effect of his previous testimony that the period of Durham's `insanity' embraced July 13, 1951. It is plain from our decision in Tatum that this pre­vious testimony was adequate to prevent the presumption of sanity from becoming conclusive and to place the bur­den of proving sanity upon the Government. None of the testimony before the court in Tatum was couched in terms of `right and wrong.'

 

                                Finally, even assuming arguendo that the court, contrary to the plain meaning of its words, recognized that the prosecution had the burden of proving Durham's sanity, there would still be a fatal error. For once the issue of insanity is raised by the introduction of `some evidence,' so that the presumption of sanity is no longer absolute, it is in­cumbent upon the trier of fact to weigh and consider `the whole evidence, including that supplied by the presump­tion of sanity . . . on the issue of the capacity in law of the accused to commit the crime. Here, manifestly, the court as the trier of fact did not and could not weigh the whole evidence,' for it found there was `no testimony concerning the mental state' of Durham.

 

                                For the foregoing reasons, the judgment is reversed and the case is remanded for a new trial.

 

                                It has been ably argued by counsel for Durham that the existing tests in the District of Columbia for determining criminal responsibility, i.e., the so-called right-wrong test supplemented by the irresistible impulse test, are not satisfactory criteria for determining criminal responsibi­lity. We are urged to adopt a different test to be applied on the retrial of this case. This contention has behind it nearly a century of agitation for reform.

 

                                A. the right-wrong test, approved in this jurisdiction in 1882, was the exclusive test of criminal responsibility in the District of Columbia until 1929 when we approved the irresistible impulse test as a supplementary test in Smith v. United States. The right-wrong test has its roots in England. There, by the first quarter of the eighteenth century, an accused escaped punishment if he could not distinguish `good and evil, ' i .e., if he `doth not know what he is doing, no more than . . . a wild beast.' Later in the same century, the `wild beast' test was abandoned and `right and wrong' was substituted for `good and evil.' And toward the middle of the nineteenth century, the House of Lords in the famous M'Naghten case restated what had become the accepted `right-wrong' test in a form which has since been followed, not only in England but in most American jurisdictions as an exclusive test of criminal re­sponsibility:

 

                                `. . . the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be re­sponsible for his crimes, until the contrary be proved to their satisfaction; and that, to estab­lish a defense on the ground of insanity, it must be clearly proved that, at the time of the com­mitting of the act, the party accused was labour­ing under such a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.'

 

                                As early as 1838, Isaac Ray, one of the founders of the American Psychiatric Association, in his now classic Medi­cal Jurisprudence of Insanity, called knowledge of right and wrong a `fallacious' test of criminal responsibility. This view has long since been substantiated by enormous devel­opments in knowledge of mental life. In 1928 Mr. Justice Cardozo said to the New York Academy of Medicine: Everyone concedes that the present (legal) definition of insanity has little relation to the truths of mental life.'

 

                                Medico-legal writers in large number, The Report of the Royal Commission on Capital Punishment 1949-1953, and the Preliminary Report by the Committee on Forensic Psychiatry of the Group for the Advancement of Psychia­try present convincing evidence that the right-and-wrong test is `based on an entirely obsolete and misleading con­ception of the nature of insanity.' The science of psychia­try now recognizes that a man is an integrated personality and that reason, which is only one element in that per­sonality, is not the sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore an inadequate guide to mental responsi­bility for criminal behavior. As Professor Sheldon Glueck of the Harvard Law School points out in discussing the right-wrong tests, which he calls the knowledge tests:

 

                                `It is evident that the knowledge tests unscienti­fically abstract out of the mental make-up but one phase or element of mental life, the cogni­tive, which, in this era of dynamic psychology, is beginning to be regarded as not the most impor­tant factor in conduct and its disorders. In brief, these tests proceed upon the following question­able assumptions of an outworn era in psychia­try: (1) that lack of knowledge of the "nature of quality" of an act (assuming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important ele­ment therein, and consequently should be the sole criterion of responsibility when insanity is involved; and (3) that the capacity of knowing right from wrong can be completely intact and functioning perfectly even though a defendant is otherwise demonstrably of disordered mind.'

 

                                Nine years ago we said:

 

                                `The modern science of psychology . . . does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called in­stinct, emotion, or impulse in the way he should go. '

                                By its misleading emphasis on the cognitive, the right­ wrong test requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsi­bility.

 

                                The fundamental objection to the right-wrong test, how­ever, is not that criminal irresponsibility is made to rest upon an inadequate, invalid or indeterminable symptom or manifestation, but that it is made to rest upon any parti­cular symptom. In attempting to define insanity in terms of a symptom, the court have assumed an impossible role, not merely one for which they have no special competence. As the Royal Commission emphasizes, it is dangerous `to abstract particular mental faculties, and to lay it down that unless these particular faculties are destroyed or grave­ly impaired, an accused person, whatever the nature of his mental disease, must be held to be criminally responsi­ble...' In this field of law as in others, the fact finder should be free to consider all information advanced by relevant scientific disciplines.

 

                                Despite demands in the name of scientific advances, this court refused to alter the right-wrong test at the turn of the century. But in 1929, we reconsidered in response to `the cry of scientific experts' and added the irresistible impulse test as a supplementary test for determining cri­minal responsibility. Without `hesitation' we declared, in Smith v. United States, `it to be the law of this District that, in cases where insanity is interposed as a defense, and the facts are sufficient to call for the application of the rule of irresistible impulse, the jury should be so charged.' We said:

 

                                `. . . The modern doctrine is that the degree of insanity which will relieve the accused of the consequences of a criminal act must be such as to create in his mind an uncontrollable impulse to commit the offense charged. This impulse must be such as to override the reason and judg­ment and obliterate the sense of right and wrong to the extent that the accused is deprived of the power to choose between right and wrong. The mere ability to distinguish right from wrong is no longer the correct test either in civil or cri­minal cases, where the defense of insanity is interposed. The accepted rule in this day and age, with the great advancement in medical science as an enlightening influence on this subject, is that the accused must be capable, not only of distinguishing between right and wrong, but that he was not impelled to do the act by an irresistible impulse, which means be­fore it will justify a verdict of acquittal that his reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong. '

 

                                As we have already indicated, this has since been the test in the District.

 

                                Although the Smith case did not abandon the right-wrong test, it did liberate the fact finder from exclusive reliance upon that discredited criterion by allowing the jury to inquire also whether the accused suffered from an unde­fined `diseased mental condition (which) deprive(d) him of the will power to resist the insane impulse....' The term `irresistible impulse,' however, carries the misleading implication that `diseased mental condition(s)' produce only sudden, momentary or spontaneous inclinations to commit unlawful acts.

 

                                As the Royal Commission found:

 

                                `. . . In many cases . . . this is not true at all. The sufferer from (melancholia, for example) experi­ences a change of mood which alters the whole of his existence. He may believe, for instance, that a future of such degradation and misery awaits both him and his family that death for all is a less dreadful alternative. Even the thought that the acts he contemplates are murder and suicide pales into insignificance in contrast with what he otherwise expects. The criminal act, in such circumstances, may be the reverse of impul­sive. It may be coolly and carefully prepared; yet it is still the act of a madman. This is merely an illustration; similar states of mind are likely to lie behind the criminal act when murders are committed by persons suffering from schizo­phrenia or paranoid psychoses due to disease of the brain.'

 

                                We find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient account of psychic realities and scientific knowledge, and (b) it is based upon one symptom and so cannot validly be applied in all circumstances. We find that the `irresistible impulse' test is also inadequate in that it gives no recognition to mental illness characterized by brooding and reflection and so relegates acts caused by such illness to the application of the inadequate right-wrong test. We conclude that a broader test should be adopted.

 

                                In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts and, in adopting a new test, we invoke our inherent power to make the change prospectively.

 

                                The rule we now hold must be applied on the retrial of this case and in future cases is not unlike that followed by the New Hampshire court since 1870. It is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.

 

                                We use `disease' in the sense of a condition which is con­sidered capable of either improving or deteriorating. We use `defect' in the sense of a condition which is not con­sidered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.

 

                                Whenever there is `some evidence' that the accused suffered from a diseased or defective mental condition at the time of the unlawful act was committed, the trial court must provide the jury with guides for determining whether the accused can be held criminally responsible. We do not and indeed could not, formulate an instruction which would be either appropriate or binding in all cases. But under the rule now announced, any instruction should in some way convey to the jury the sense and substance of the follow­ing: If you the jury believe beyond a reasonable doubt that the accused was not suffering from a diseased or defective mental condition at the time he committed the criminal act charged, you may find him guilty. If you believe he was suffering from a diseased or defective mental condi­tion when he committed the act, but believe beyond a rea­sonable doubt that the act was not the product of such mental abnormality, you may find him guilty. Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insani­ty. Thus your task would not be completed upon find­ing, if you did find, that the accused suffered from a men­tal disease or defect. He would still be responsible for his unlawful act if there was no causal connection between such mental abnormality and the act. These questions must be determined by you from the facts which you find to be fairly deducible from the testimony and the evi­dence in this case.

 

                                The questions of fact under the test we now lay down are as capable of determination by the jury as, for example, the questions juries must determine upon a claim of total disability under a policy of insurance where the state of medical knowledge concerning the disease involved, and its effects, is obscure or in conflict. In such cases, the jury is not required to depend on arbitrarily selected `symp­toms, phases or manifestations' of the disease as criterions of fact upon which the claim depends. Similarly, upon a claim of criminal irresponsibility, the jury will not be re­quired to rely on such symptoms as criteria for deter­mining the ultimate question of fact upon which such claim depends. Testimony as to such `symptoms, phases or manifestations,' along with other relevant evidence, will go to the jury upon the ultimate questions of fact which it alone can finally determine. Whatever the state of psychiatry, the psychiatrist will be permitted to carry out his principal court function which, as we noted in Hol­loway v U.S., `is to inform the jury of the character of (the accused's) mental disease (or defect).' The jury's range of inquiry will not be limited to, but may include, for example, whether an accused, who suffered from a mental disease or defect, did not know the difference between right and wrong, acted under the compulsion of an irresistible impulse or had `been deprived of or lost the power of his will.... '

 

                                Finally, in leaving the determination of the ultimate ques­tion of fact to the jury, we permit it to perform its tradi­tional function which, as we said in Holloway, is to apply `our inherited ideals of moral responsibility to individuals prosecuted for crime....' Juries will continue to make moral judgments, still operating under the fundamental precept that `Our collective conscience does not allow punishment where it cannot impose blame.' But in mak­ing such judgments, they will be guided by wider hori­zons of knowledge concerning mental life. The question will be simply whether the accused acted because of a mental disorder, and not whether he displayed particular symptoms which medical science has long recognized do not necessarily, or even typically, accompany even the most serious mental disorder.

 

                                The legal and moral traditions of the western world re­quire that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not at­tach, and hence there will not be criminal responsibility. The rule we state in this opinion is designed to meet these requirements.

 

                                Reversed and remanded for a new trial.

 

                                                                                          End of Opinion

 

 

C. Intoxication

 

                Voluntary intoxication is generally not a defense to a criminal action unless specific intent is involved. In that case, the voluntary intoxication may be of such a degree that the defendant is incapable of forming the requisite specific intent. Sochor v. State, 619 So.2d 285 (Fla. 1993)

                Involuntary intoxication is ordinarily a defense to a criminal action, e.g. unexpected reaction to legal drug intake.

                As a general rule, voluntary drunkenness, which does not amount to legal insanity, whether that drunkenness is caused by drugs or liquor, is not an excuse for an offense while committed in that condition.

                One who hallucinated as a result of drug activity may be psy­chotic, since he lost control or contact with reality. Most of the cases agree that mere physical addiction to or psychological dependence upon a drug or narcotic, standing alone, is insufficient to show insani­ty. Some evidence of a mental disease or defect is needed to submit the issue of insanity to a jury for its determination.

                The courts treat chronic alcoholism and drug addiction as a disease rather than as a crime. In Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), it was determined that alcoholism and drug addiction fall within the protection of the Eighth Amendment, prohibition against cruel and unusual punishment, when the state or the government attempts to punish an addict solely because of his status as an alcohol or drug dependent.

                There remains, however, an overall legal problem regarding drug use and criminal responsibility. It is well known that where specific intent is a necessary element of a particular crime that is charged, the fact that an individual is intoxicated may negate this element, de­pending upon the degree of intoxication. Crimes such as burglary, murder and robbery, which require specific intent, may be defended against on the basis that the individual has ingested sufficient quanti­ties of drugs, narcotics or alcohol to render it impossible for him to form the requisite criminal intent to commit the crime.

                While most jurisdictions still adhere to the M'Naghten Rule test of insanity, a few of them have superimposed upon the M'Naghten Rule the irresistible impulse test discussed above. The M'Naghten Rule, standing alone without supplementation, has been held to be constitutional in that it does not violate due process.

                According to the Supreme Court decision in Leland v. Oregon, 343 U.S. 790,72 S. Ct. 1002, 96 L. Ed. 2d 1302 (1952), the defense of pathological intoxication is not recognized by the courts at the present time. The main reason for this appears to be founded upon the presumption that there is an overwhelming probability of vio­lent conduct on the part of an individual who has an underlying mental problem once he starts drinking. What this means, then, is that if a defendant knows that he is likely to commit violent acts if he ingests alcohol or drugs, this might have a disastrous effect up­on any insanity defense that he might have if he commits a crime un­der the influence of narcotics, drugs or alcohol.

                An entirely new science known as psychopharmacology has developed since we have become concerned with studying the effect of drugs on human behavior. Psychopharmacology deals with the phy­sical and psychological properties of drugs and their influence on the central nervous system and behavioral patterns on the humans who have ingested them. A study of this science has revealed that the ef­fect of drugs differs with regard to dosage and the manner in which it is administered to the body. This science has also determined that ingestion of hallucinogens such as LSD, peyote, and mescaline may result in behavior closely resembling the symptoms of schizo­phrenia. In this regard, marijuana is recognized as the mildest of the hallucinogens. Usually the reaction to this drug is a rather euphoric experience. It must be noted, however, that the person­ality of the individual taking a drug or narcotic is the most positive single factor with regard to what type of behavioral pattern will result.

                Even though it may be established that an individual has volun­tarily ingested drugs, narcotics, or alcohol to the extent that he is hallucinating, it is very difficult, if not impossible, to establish that while under the influence of hallucinogenic drugs or narcotics, the accused was unable to distinguish right from wrong.

 

D. Immunity

 

                There are two ways immunity may be granted a defend­ant in a criminal action. These are known as "com­mon law immunity" and "statutory immunity." The immunity con­ferred may be either "use" or "transactional" depending upon the jurisdiction. "Use" immunity means that the government may not base a criminal charge upon a defendant's statement or evidence de­rived therefrom. "Transactional" immunity prevents the government from later charging the defendant with the subject matter of a de­fendant's statement, even though the evidence upon which the charge is based is acquired independent of the defendant's statement. If a charge is made after a defendant has received "use" immunity, the government has the affirmative burden of establishing that none of the evidence to be used against the defendant was derived as a result of the defendant's statement.

 

                The Supreme Court has held that use immunity is sufficient for constitutional purposes.

 

1. Common Law Immunity

 

                Common law immunity is an agreement not to prosecute, or what is commonly referred to as a contract of immunity. This is, very simply, a contract written and drawn between the prosecuting authority and the defendant and his counsel. This method has exist­ed as a matter of public policy and serves to prevent an individual from relying on the Fifth Amendment to the United States Consti­tution. It must be noted at this point that only the prosecutor or grand jury, and not law enforcement, may authorize this type of immunity. In Flori­da, the contract of immunity may be approved and sanctioned by a judge.

                Contract immunity can at the option of the prosecutor confer transactional or use immunity. The contract is usually entered into between the defendant and the state, the state agreeing not to prosecute an individual for a particular offense in return for the defendant's doing something, usually testifying in a criminal case. If the defendant lives up to his portion of the bargain, then the prosecutor is unable to prosecute for the crime alluded to in the contract, even though he may establish there is evidence of the defendant's guilt in the offense.

 

2. Statutory Immunity

 

                Florida provides for "use" immunity by statute.

 

                The second way immunity can be conferred is by statute. This involves compelling an individual to give testimony against himself, either under subpoena or by threat of contempt of court. A common example of this type of immunity occurs when an indivi­dual is subpoenaed to appear before the Grand Jury, before the court, or before a prosecuting authority, and is forced, under sub­poena and the threat of contempt of court, to testify about facts of which he has knowledge. The only reason an individual may refuse to answer a question put to him and claim the Fifth Amendment pri­vilege is when he is in fear of criminal prosecution. The fact that his answer may be embarrassing, or may result in civil responsibility being placed against him, is not sufficient to invoke the Fifth Amendment privilege.

                An individual who refuses to answer a question, invoking the Fifth Amendment privilege, may be forced to answer the question and thus incriminate himself, if the prosecutor agrees that the indi­vidual will not be prosecuted on the basis of anything that he may say in his answer. This type of immunity, may be known as "use" immunity. In other words, the prosecutor may not charge an indi­vidual with a crime based upon what he says in his answer or based upon any evidence derived from what he says in his answer. Unlike transactional immunity, the prosecutor may be able to bring a charge based on sources of evidence which he can convince the court were derived independently of the witness' statements. Whether the scope of the immunity conferred is "transactional" or "use" is governed by statute.  Florida has provided for “use” immunity by Statute pursuant to Fla. Stat. Section 914.04.

 

                Statutory immunity in the State of Florida is binding upon all other prosecutors in the state, but may not be binding upon prose­cutors outside the state or by the federal government, for the same crime.

 

E. Statute of Limitations‑‑Pre-Accusation Delay

 

TIME LIMITATION DEFENSES

 

(A)(B)(C)(D)(E)(F)

CRIMEI.D. OFFORMALKNOWLEDGEARRESTTRIAL

OCCURANCEDEFENDANTCHARGEBYNOTICEJURY

OR(WARRANT)DEFENDANTTOSELECTION

DISCOVERYOF CHARGEAPPEAR

 

 

STATUTE OFPRE-ACCUSATIONSPEEDY

LIMITATIONSDELAYTRIAL

(DUE PROCESS)

A to CB to DE to F

 

 

PRE-ACCUSATION DELAY TEST

 

1.WAS THE DELAY UNREASONABLE

A.TIME

B.REASON - INTENTIONAL/TACTICAL/NEGLIGENT

C.COMPLICATED CASE

 

IF UNREASONABLE

 

2.WAS THE DEFENDANT PREJUDICED IN PREPARING AN ADEQUATE DEFENSE BY THE DELAY

 

THE DEFENDANT MUST HAVE BEEN AVAILABLE AND NOT RUNNING OR HIDING AND MUST NOT HAVE HAD KNOWLEDGE - DIRECTLY OR INDIRECTLY - OF THE CHARGES.

 

 

                At the common law, there were no statutes of limitations. A statute of limitations is imposed upon the prosecuting authority for the reason it is felt that charges, if they ought to be brought, must be brought within a reasonable period of time, so that the person charged may prepare an adequate defense. The logic behind this argument is to the effect that the longer the state waits to bring a criminal charge, the more difficult it becomes to prepare a defense.

                Under Florida law a prosecution for a capital, life felony, or a felony that resulted in a death may be commenced at any time; for a first-degree felony, prosecution must be commenced within four years; any other felony, three years; first degree misdemeanor, two years; and second degree misdemean­ors, one year. For purposes of measuring time under the statute of limitations, an offense in Florida is committed when every element has occurred. A prosecution is commenced when either an indict­ment, arrest warrant, or information is filed in the case. If the exact date of the commission of the offense is not possible to ascertain, some jurisdictions permit the statute of limitations to begin running from the time the crime is discovered. Florida has such statutory provisions for crimes involving fraud.

                So long as the prosecuting authority brings a charge against an individual within the period of time allocated by the statute of limi­tations, the statute will stop running. It is not necessary that the in­dividual charged be in custody, nor is it necessary that he be brought to trial within the period of time allocated by the statute of limita­tions. To hold otherwise, of course, would permit criminals to es­cape liability for their acts even though charged, if they were able to remain hidden beyond the period of time allocated by the particular statute of limitations.

                Recent Supreme Court decisions have dealt not only with the problem of the statute of limitations, but the problem of law en­forcement arbitrarily withholding the filing of criminal charges in certain cases. This action on the part of law enforcement, most notably, occurs in undercover narcotics cases. In a particular area of a city, police may engage in narcotics buys and make observations regarding narcotic felony violations and may not make arrests at the time the offense is committed for the reason that they do not want to "blow their cover." In the case of Ross v. United States, 349 F. 2d 210 (D.C. Cir. 1965), the federal courts have expressed some concern over this arbitrary delay in the filing of charges by the Federal Government. Even though filed within the statute of limitations, charges that are arbitrarily withheld by law enforce­ment for some period of time may result in a substantial denial of the defendant's right to be charged and notified of the details of the charge against him so that he may prepare his defense.

                In the Ross case, it was held that a three to six month delay may be justified if law enforcement can show some pressing need to protect the identity of its undercover operatives. However, no matter what the length of delay, where the defendant can show that the delay on the part of law enforcement has materially af­fected his ability to prepare a defense, the courts have ruled that the defendant may be discharged and the case against him dismissed. This should serve as a warning for law enforcement agencies through­out the country to make every effort to determine that criminal charges are lodged within a reasonable period of time from the time that they are observed by officials.

                The courts will look to the reason for, and length of the delay to determine if it is reasonable.  There is no set period of time.  If the delay is reasonable, there is no relief for the defendant.  But if the delay is unreasonable in the court's opinion, then the defendant to be entitled to relief must demonstrate how the delay has prejudiced his defense. If the defendant cannot show that the delay prejudiced his defense, then even though unreasonable, he will not obtain a dismissal of the charges.

                In Bragenzer v. State, 582 So. 2d. 142 (Fla. 5th DCA 1991), the court ruled that failure to execute a warrant for over six years represents an unreasonable delay in the commencement of prosecution.  One attempt to serve the defendant in that time period does not constitute a diligent search. Under Florida Statute 775.15 (5) (6), the period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.  A prosecution is commenced when either an indictment or information is filed, provided the warrant is executed without unreasonable delay.  In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered.

 

F. Consent

 

                Consent may be a defense in a criminal action. However, the following elements must be shown:

 

                1.             The person consenting must be legally capable of giving such consent;

                2.             The criminal offense must be of the type for which con­sent may be given;

                3.             The consent cannot be obtained by fraud.

 

                It is generally held to be the law that one cannot consent to his own death. There has been considerable controversy in this area for several years, where the consent of the victim or of his immediate family was given a doctor to allow an individual to die. This is what

is known as a mercy killing.

                While one may never consent to his own murder, an individual may consent to such conduct as removing prop­erty, or taking possession of funds. Some jurisdictions, including Florida, have certain statutory offenses for which consent may never be a defense. Included in these offenses would be statutory rape and sexual battery on a mentally incompetent person. As a general rule, small children below the age of seven are incapable of giving consent.

 

G. Entrapment

 

                Entrapment is a defense in a criminal action when an officer of the law or his authorized agent induces an otherwise innocent per­son to commit a crime in order to have him punished. You can only have entrapment when the inducement is of such a nature that the defendant prior to the inducement did not intend to commit any crime.

                It is not entrapment merely to present the opportunity for a defendant to commit a crime. In the defense of entrap­ment, the defendant admits that he committed the act, but was otherwise innocent and was induced solely by the conduct of the police.

                One who is instigated, induced or lured by a police officer or other person acting as an agent of the police for the purpose of prosecution into commission of crimes which he otherwise had no intention of committing has as an absolute defense, the defense of entrapment.  The "predisposition" of the defendant to engage in criminal activity will defeat the defense of entrapment.

                The United States Supreme Court has spoken on the issue of entrapment. What appears below is the decision rendered by that Court in the case of United States v. Russell. 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973):

 

                                MR. JUSTICE REHNQUIST delivered the opinion of the

                                Court.

 

                                Respondent Richard Russell was charged in three counts of a five count indictment returned against him and co-defendants John and Patrick Connolly. After a jury trial in the District Court, in which his sole defense was entrapment, respondent was convicted on all three counts of having unlawfully manufactured and processed metham­phetamine (`speed') and of having unlawfully sold and delivered that drug in violation of 21 U.S.C. 331 (q) (1), (2), 360a(a), (b) (Supp. V, 1964).

 

                                * * [material omitted ] * *

 

                                The court concluded that as a matter of law `a defense to a criminal charge may be founded upon an intolerable de­gree of governmental participation in the criminal enter­prise. United States v. Russell, 459 F. 2d 671, 673 (CA9 1972). We granted certiorari, 409 U.S. 911 (1972), and now reverse that judgment.

 

                                There is little dispute concerning the essential facts in this case. On December 7, 1969, Joe Shapiro, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs, went to respondent's home on Whidbey Island in the State of Washington where he met with respondent and his two codefendants, John and Patrick Connolly. Shapiro's assignment was to locate a laboratory where it was believed that methamphetamine was being manufact­ured illicitly. He told the respondent and the Connollys' that he represented an organization in the Pacific North­west that was interested in controlling the manufacture and distribution of methamphetamine. He then made an offer to supply the defendants with the chemical phenyl-­2-propanone, an essential ingredient in the manufacture of methamphetamine in return for one-half of the drug pro­duced. This offer was made on the condition that Agent Shapiro be shown a sample of the drug which they were making and the laboratory where it was being produced.

 

 

 

 

 

 

 

 

 

 

 

 

 

ENTRAPMENT

 

TEST:WAS THE DEFENDANT "PREDISPOSED" TO COMMIT THE CRIME IN QUESTION?

 

FLORIDA LAW:

 

1.DID THE POLICE ACTIVITY COMPLAINED OF, HAVE AS ITS GOAL THE INTERRUPTION OF A SPECIFIC ONGOING CRIMINAL ACTIVITY?

 

THE POLICE MAY NOT SEEK TO PROSECUTE CRIME WHERE NO SUCH CRIME EXISTS EXCEPT FOR THE POLICE ACTIVITY.

 

2.DOES THE POLICE ACTIVITY UTILIZE MEANS REASONABLY TAILORED TO APPREHEND ONLY THOSE INVOLVED IN THE ONGOING ACTIVITY?

 

IT IS THUS ENTRAPMENT, IF:

 

A.THE POLICE FALSELY REPRESENT THAT THE ACTIVITY IS LEGAL.

 

OR

 

B.THE POLICE EMPLOY METHODS OF PERSUASION OR INDUCEMENT WHICH CREATE A SUBSTANTIAL RISK THAT SUCH AN OFFENSE WILL BE COMMITTED BY PERSONS OTHER THAN THOSE PREDISPOSED TO COMMIT THE OFFENSE.

 

                                During the conversation Patrick Connolly revealed that he had been making the drug since May 1969 and since then had produced three pounds of it. John Connolly gave the agent a bag containing a quantity of methamphetamine that he represented as being from `the last batch that we made.' Shortly thereafter, Shapiro and Patrick Connolly left respondent's house to view the laboratory which was located in the Connolly house on Whidbey Island. At the house Shapiro observed an empty bottle bearing the chem­ical label phenyl-2-propanone.

 

                                By prearrangement Shapiro returned to the Connolly house on December 9, 1969, to supply 100 grams of propanone and observe the chemical reaction. When he arrived he ob­served Patrick Connolly and the respondent cutting up pieces of aluminum foil and placing them in a large flask. There was testimony that some of the foil pieces accidentally fell on the floor and were picked up by the respondent and Shapiro and put into the flask. Thereafter Patrick Con­nolly added all of the necessary chemicals, including the propanone brought by Shapiro, to make two batches of methamphetamine. The manufacturing process having been completed the following morning, Shapiro was given one ­half of the drug and respondent kept the remainder. Shapiro offered to buy, and the respondent agreed to sell, part of the remainder for $60.

 

                                About a month later Shapiro returned to the Connolly house and met with Patrick Connolly to ask if he was still interested in their `business arrangement.' Connolly re­plied that he was interested but that he had recently ob­tained two additional bottles of phenyl-2-propanone and would not be finished with them for a couple of days. He provided some additional methamphetamine to Shapiro at that time. Three days later Shapiro returned to the Con­nolly house with a search warrant and, among other items, seized an empty 500-gram bottle of propanone and a 100 ­gram bottle, not the one he had provided, that was partial­ly filled with the chemical.

 

                                There was testimony at the trial of respondent and Patrick Connolly that phenyl-2-propanone was generally difficult to obtain. At the request of the Bureau of Narcotics and Dangerous Drugs, some chemical supply firms had volun­tarily ceased selling the chemical.

                                                * * [material omitted] * *

 

                                This court first recognized and applied the entrapment defense in Sorrells v. United States, 287 U.S. 435 (1932). In Sorrells a federal prohibition agent visited the defendant while posing as a tourist and engaged him in conversation about their common war experiences. After gaining the defendant's confidence the agent asked for some liquor, was twice refused, but upon asking a third time the defend­ant finally capitulated, and was subsequently prosecuted for violating the National Prohibition Act.

 

                                Chief Justice Hughes, speaking for the Court, held that as a matter of statutory construction the defense of entrap­ment should have been available to the defendant. Under the theory propounded by the Chief Justice, the entrap­ment defense prohibits law enforcement officers from in­stigating criminal acts by persons otherwise innocent in order `to lure them to its commission and to punish them.' 287 U.S. at 448. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the de­fendant to commit the crime. `(I)f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.' 287 U.S., at 451.

 

                                Justice Roberts concurred in the result but was of the view `that courts must be closed to the trial of a crime instigated by the government's own agents.' 287 U.S., at 459. The difference in the view of the majority and the concurring opinions is that in the former the inquiry focuses on the predisposition of the defendant, whereas in the latter the inquiry focuses on whether the government `instigated the crime. '

 

                                In 1958 the Court again considered the theory underlying the entrapment defense and expressly reaffirmed the view expressed by the Sorrells majority. Sherman v. United States, 356 U.S. 369 (1958). In Sherman the defendant was convicted of selling narcotics to a government infor­mer. As in Sorrells it appears that the government agent gained the confidence of the defendant and, despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act. On the basis of Sorrells, this Court reversed the affirmance of the defendant's conviction.

 

                                In affirming the theory underlying Sorrells, Chief Justice Warren for the Court, held that `(t)o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.' 356 U.S., at 372. Justice Frankfurter stated in a concurring opinion that he believed Justice Roberts had the better view in Sorrells and would have framed the question to be asked in an entrapment defense in terms of `whether the police conduct revealed in the particular case falls below standards . . . for the proper use of governmental power.' 356 U.S., at 382.

 

                                In the instant case respondent asks us to reconsider the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. His principal contention is that the defense should rest on constitutional grounds. He argues that the level of Shapiro's involvement in the manufacture of the methamphetamine was so high that a criminal prosecution for the drug's manufacture vio­lates the fundamental principles of due process. The re­spondent contends that the same factors that led this Court to apply the exclusionary rule to illegal searches and seizures, Weeks v. United States, 232 U.S. 383 (1914);Mapp v. Ohio, 367 U .S. 643 (1961) , and confessions, Miranda v. Arizona, 384 U.S. 436 (1966), should be con­sidered here. But he would have the Court go further in deterring undesirable official conduct by requiring that any prosecution be barred absolutely because of the police in­volvement in criminal activity. The analogy is imperfect in any event, for the principal reason behind the adoption of the exclusionary rule was the government's failure `to ob­serve its own laws.' Mapp v. Ohio, supra, 367 U.S., at 659. Unlike the situations giving rise to the holdings in Mapp and Miranda, the government's conduct here violated no independent constitutional right of the respondent. Nor did Shapiro violate any federal statute or rule or commit any crime in infiltrating the respondent's drug enterprise.

 

                                Respondent would overcome this basic weakness in his analogy to the exclusionary rule cases by having the Court adopt a rigid constitutional rule that would preclude any prosecution when it is shown that the criminal conduct would not have been possible had not an undercover agent `supplied an indispensable means to the commission of the crime that could not have been obtained otherwise, through legal or illegal channels.' Even if we were to sur­mount the difficulties attending the notion that due pro­cess of law can be embodied in fixed rules, and those at­tending respondent's particular formulation, the rule he proposed would not appear to be of significant benefit to him. For on the record presented it appears that he cannot fit within the terms of the very rule he proposes.

 

                                The record discloses that although the propanone was dif­ficult to obtain it was by no means impossible. The de­fendants admitted making the drug both before and after those batches made with the propanone supplied by Sha­piro. Shapiro testified that he saw an empty bottle labeled phenyl-2-propanone on his first visit to the laboratory on December 7, 1969. And when the laboratory was searched pursuant to a search warrant on January 10, 1970, two ad­ditional bottles labeled phenyl-2-propanone were seized.

                               

                                Thus, the facts in the record amply demonstrate that the propanone used in the illicit manufacture of methamphe­tamine not only could have been obtained without the intervention of Shapiro but was in fact obtained by these defendants.

                               

                                While we may some day be presented with a situation in which the conduct of law enforcement agents is so outra­geous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction,cf. Rochin v. California, 342 U.S. 165 (1952), the instant case is distinctly not of that breed. Shapiro's contribution of propanone to the criminal enterprise al­ready in process was scarcely objectionable. The chemical is by itself a harmless substance and its possession is legal. While the government may have been seeking to make it more difficult for drug rings, such as that of which respon­dent was a member, to obtain the chemical, the evidence described above shows that it nonetheless was obtainable. The law enforcement conduct here stops far short of vio­lating that `fundamental fairness, shocking to the univer­sal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States exrel. Singleton, 361 U.S. 234, 246 (1960).

 

                                The illicit manufacture of drugs is not a sporadic, isolated criminal incident, but a continuing, though illegal, business enterprise. In order to obtain conviction for illegally manu­facturing drugs, the gathering of evidence of past unlawful conduct frequently proves to be an all but impossible task. Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detec­tion: the infiltration of drug rings and a limited participa­tion in their unlawful present practices. Such infiltration is a recognized and permissible means of apprehension; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate `fundamental fairness' or `shock­ing to the universal sense of justice,' Kinsella, supra.

 

                                Respondent also urges, as an alternative to his constitu­tional argument, that we broaden the nonconstitutional defense of entrapment in order to sustain the judgment of the Court of Appeals. This Court's opinions in Sorrells v. United States, supra, and Sherman v. United States, supra, held that the principal element in the defense of entrap­ment was the defendant's predisposition to commit the crime. Respondent conceded in the Court of Appeals, as well he might, `that he may have harbored a predisposi­tion to commit the charged offenses.' 459 F. 2d. at 672. Yet he argues that the jury's refusal to find entrapment under the charge submitted to it by the trial court should be overturned and the views of Justices Roberts and Frankfurter, concurring inSorrells and Sherman, respect­ively, which make the essential element of the defense turn on the type and degree of governmental conduct, be adopted as the law.

 

                                We decline to overrule these cases. Sorrells is a precedent of long standing that has already been once re-examined in Sherman and implicitly there reaffirmed. Since the defense is not of a constitutional dimension, Congress may address itself to the questions and adopt any substantive definition of the defense that it may find desirable.

 

                                * * [material omitted] * *

 

                                Nor does it seem particularly desirable for the law to grant complete immunity from prosecution to one who himself planned to commit a crime, and then committed it, simply because government undercover agents subjected him to inducements which might have seduced a hypothetical individual who was not so predisposed. We are content to leave the matter where it was left by the Court inSherman.

 

                                `The function of law enforcement is the preven­tion of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, "A different question is presented 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 may prosecute." ' 356 U.S., at 372, quot­ing Sorrells v. United States, supra, 287 U.S., at 442.

 

                                                                                          End of Opinion

 

                In Cruz v. State 465 So. 2d 516 (Fla. 1985), the Florida Su­preme Court struck down a police decoy operation and laid down cer­tain guidelines to be followed in Florida on the issue of entrapment.

 

                Entrapment does not occur as a matter of law where police ac­tivity:

 

                (a)           Has as its end the interruption of a specific ongoing crimi­nal activity; and

                (b)           Utilizes means reasonably tailored to apprehend those in­volved in those ongoing criminal activities.

 

                The police must fight crime‑‑not manufacture it. They cannot induce or encourage a person to commit a crime by either:

 

                (a)           Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

                (b)           Employing methods of persuasion or inducement which create a substantial risk that such an offense will be com­mitted by a person other than one ready to commit it.

 

                Bad motives regarding police action through an informant can result in the defense of entrapment. InPezzella v. State, 513 So. 2d 1328 (Fla. 3d DCA 1987) entrapment existed where the police used an informant who knew the defendant was a dope addict. The informant enticed the defendant to sell drugs only after promising he could keep some for his own use.

 

                In Hampton v. United States, 507 F. 2d 832 (8th Cir. 1976), affirmed, 425 U.S. 484 (1976), the Eighth Circuit Court of Appeals held as follows:

 

                                Petitioner was convicted of two counts of distributing heroin in violation of 21 U.S.C. S.841(a)(1) in the United States District Court for the Eastern District of Missouri and sentenced to concurrent terms of five years' imprison­ment (suspended). The case arose from two sales of heroin by petitioner to agents of the Federal Drug Enforcement Administration (DEA) in St. Louis on February 25 and 26, 1974. The sales were arranged by one Hutton, who was a pool-playing acquaintance of petitioner at the Pub bar in St. Louis and also a DEA informant.

 

                                According to the government's witnesses, in late February 1974, Hutton and petitioner were shooting pool at the Pub when petitioner, after observing `track' (needle) marks on Hutton's arms told Hutton that he needed money and knew where he could get some heroin. Hut­ton responded that he could find a buyer and petitioner suggested that he `get in touch with those people.' Hutton then called DEA agent Terry Sawyer and arranged a sale for 10 p.m. on February 25.

 

                                At the appointed time, Hutton and petitioner went to a prearranged meeting place and were met by agent Sawyer and DEA agent McDowell, posing as narcotics dealers. Petitioner produced a tinfoil packet from his cap and turned it over to the agents who tested it, pronounced it `okay' and negotiated a price of $145 which was paid to peti­tioner. Before they parted, petitioner told Sawyer that he could obtain larger quantities of heroin and gave Sawyer a phone number where he could be reached.

 

                                The next day Sawyer called petitioner and arranged for another `buy' that afternoon. Petitioner got Hutton to go along and they met the agents again near where they had been the previous night.

 

                                They all entered the agents' car and petitioner again produced a tinfoil packet from his cap. The agents again field tested it and pronounced it satisfactory. Petitioner then asked for $500 which agent Sawyer said he would get from the trunk which was a signal to other agents to move in and arrest petitioner, which they did.

 

                                * [material omitted] *

 

                                Petitioner contended that he neither intended to sell, nor knew that he was dealing in heroin and that all of the drugs he sold were supplied by Hutton. His account was at least partially disbelieved by the jury which was instructed that in order to convict petitioner they must find that the Government proved `that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.' Thus the guilty verdict necessarily implies that the jury rejected petitioner's claim that he did not know the substance was heroin, and petitioner himself admitted both soliciting and carrying out sales. The only relevance of his version of the facts, then, lies in his having requested an instruction embodying that version. He did not request a standard entrapment instruction but he did request the following:

 

                                `The defendant asserts that he was the victim of entrapment as to the crimes charged in the in­dictment.'

 

                                In Russell we held that the statutory defense of entrapment was not available where it was conceded that a government agent supplied a necessary ingredient in the manufacture of an illicit drug. We reaffirmed the principle of Sorrells v. United States, 287 U.S. 435 (1932), and Sherman v United States, 356 U.S. 369 (1958), that the entrapment defense `focus(es) on the intent or predisposition of the defendant to commit the crime,' Russell, supra, at 429, ra­ther than upon the conduct of the Government's agents. We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the de­fendant to commit the crime was established.

 

                                In holding that `it is only when the Government's decep­tion actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play,' 411 U.S., at 436, we of course rejected the contrary view of the dissents in that case and the concurrences in Sorrells, and Sherman. In view of these holdings, petitioner correctly recognizes that his case does not qualify as one involving `entrapment' at all. He instead relies on the language in Russellthat `we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial pro­cesses to obtain a conviction, cf. Rochin v. California, 432 U.S. 165 (1952)....'

 

                                In urging that this case involves a violation of his due pro­cess rights, petitioner misapprehends the meaning of the quoted language in Russell, supra. Admittedly petitioner's case is different from Russell's but the difference is one of degree, not of kind. In Russell the ingredient supplied by the government agent was a legal drug which the defend­ants demonstrably could have obtained from other sources besides the Government. Here the drug which the govern­ment allegedly supplied to petitioner was both illegal and constituted the corpus delicti for the sale of which the pe­titioner was convicted. The Government obviously played a more significant role in enabling petitioner to sell contra­band in this case than it did in Russell.

 

                                But in each case the government agents were acting in con­cert with the defendant, and in each case either the jury found or the defendant conceded that he was predisposed to commit the crime for which he was convicted. The rem­edy of the criminal defendant with respect to the acts of government agents, which, far from being resisted, are en­couraged by him, lies solely in the defense of entrapment. But, as noted, petitioner's conceded predisposition ren­dered this defense unavailable to him.

 

                                To sustain petitioner's contention here would run direct­ly contrary to our statement in Russell that the defense of entrapment is not intended `to give the federal judiciary a "chancellor's foot" veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the executive branch of the government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.' 411 U.S., at 435.

 

                                The limitations of the Due Process Clause of the Fifth Amendment, and of those portions of the Bill of Rights which it has been held to incorporate, come into play only when the government activity in question violates some protected right of thedefendant. Here, as we have noted, the police, the government informer, and the defendant acted in concert with one another. If the result of the gov­ernmental activity is to `implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission . . .' Sorrells, supra, at 442, the de­fendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or fed­eral law. See O'Shea v. Littleton,414 U.S. 4&8, 503 (1974); Imbler v. Pachtman (No. 74-5435 O.T. 1975, slip op., pp. 19 - 20). But the police conduct here no more de­prived defendant of any right secured to him by the United States Constitution than did the police conduct inRussell deprive Russell of any rights.

 

                                Affirmed.

 

                                                                                          End of Opinion

 

                In the case of Bowser v. State, 555 So. 2d. 879 (Fla. 2nd DCA 1989), the court deals with the defense of entrapment in a drug arrest situation as follows:

 

                                CAMPBELL, Chief Judge.  Appellant, defendant below, appeals the judgment and sentence imposed upon him for sale and delivery of a controlled substance. Appellant asserts that the trial court erred in failing to grant his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190 (c)(4). Appellant contended in his motion to dismiss that the undisputed facts surrounding his arrest and conviction established that he was entrapped as a matter of law.  We agree, and reverse and remand for entry of an order of dismissal based upon appellant's motion below and this opinion.

 

                                The testimony presented at the hearing on the motion to dismiss established that Detectives Robert Hall and John Vidalis were traveling in an unmarked vehicle when they picked up appellant who was hitchhiking.  The detectives testified that they had previous success developing drug cases from hitchhikers.  Appellant carried a cloth bag of the type that often contains a bottle of expensive whiskey. According to Detective Hall, a lot of people use this type of bag to carry their drugs.  When the appellant got in the car, Detective Hall said, "Oh, I know what that is for," referring to the bag.  Appellant indicated that there was nothing inside and he did not have a `stash'.  He stated however, that since he had just left a doctor's office where he had his arm rebroken and set, he did have a prescription for Tylenol III (codeine), but had no money to pay for it. Detective Hall indicated that he had money.

 

                                Detective Hall further testified that there was "an environment or atmosphere in the car at that time if he would be receptive, if we bought the medication for him that he'd be willing to party with us."

 

                                The detectives then drove appellant to a Walgreen's store where Detective Hall gave appellant $10.00, and appellant had the prescription filled at a cost of $4.09. Appellant returned the change from the $10.00 to Detective Hall.  Appellant told him that "it goes good with beer," so Detective Hall purchased a six pack.  When they got back to the car, appellant asked, "What would be fair?" Detective Hall then gave appellant three dollars and asked him for six of the pills.

 

                                Detective Hall admitted that he had not known appellant before, that appellant was not the subject of any criminal investigation, that appellant had no prior arrest record and that appellant had a cast on his arm and told him he was coming from the doctor.  Detective Hall also stated that, to his knowledge, appellant's prescription was valid.

 

                                The traditional subjective test to be applied to cases where entrapment is claimed is whether the defendant was "predisposed" to commit the crime in question. Sorrells v. United States, 287 U.S. 435, 52 S.Ct. 210, 77 L. Ed. 413 (1932). However, in Cruz v. State, 465 So. 2d. 516 (FLA), cert denied, 473 U.S. 905, 105 S. Ct. 3527, 87 L. Ed. 2d 652 (1985), the Florida Supreme Court adopted a threshold objective test to be applied before the case goes to a jury, i.e., entrapment as a matter of law.  The objective test looks to the conduct of the police, not the predisposition of the defendant.  If the police activity is found not to be entrapment as a matter of law, it is sent to the jury to determine if it is entrapment under the traditional subjective test.

 

                                Neither party has addressed the application to this case, if any, of section 777.201, Florida Statutes (1987).  However, we determine it to be appropriate to state we decline to follow the footnoted suggestion of our colleagues of the third district that the objective test of Cruz has been abolished by section 777.201.  SeeGonzalez v. State, 525 So. 2d. 1005 (Fla. 3rd DCA 1988); State v. Lopez, 522 So. 2d. 537 (Fla. 3rd DCA 1988).  Other colleagues on the fourth district apparently concur with our view that the Cruz objective test remains viable. State v. Burch,545 So. 2d 279 (Fla. 4th DCA 1989).  There is nothing express or implied in the wording of section 777.201 which, to us, can be seized upon to reveal any legislative intent to abolish the Cruz objective test.

 

                                ** [material omitted] **

 

                                While law enforcement officials are allowed to use a variety of methods to detect and punish ongoing criminal activity, those methods may not be used where there is a danger that an innocent person may be hurt.  Even in Sorrells, the seminal case on subjective entrapment, the court acknowledged that:

 

                                "A different question is presented 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 may prosecute...."

 

                                In applying the objective law, the crucial question is whether the police conduct falls below the standards for the proper use of governmental power.  Entrapment as a matter of law is determined by a two-prong test.  The first question is whether the police activity has as its end the interruption of a specific ongoing criminal activity.  Police activity that seeks to prosecute crime where no such crime exists but for the police activity engendering the crime falls below the standards for the proper use to governmental power.  The second question is whether the police activity utilizes means reasonably tailored to apprehend only those involved in the ongoing criminal activity... The activity falls below the standards for proper use of governmental power if the police techniques are inappropriate or if they induce or encourage the defendant to engage in criminal conduct by: (1) Making false representations designed to induce the belief that such conduct is not prohibited; or (2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

 

                                Here, applying the first part of the objective test,it is clear that the police activity in question did not have as its end the interruption of a specific ongoing criminal activity.  The detectives in essence manufactured a crime by seeking out appellant and persuading him to sell the codeine tablets which appellant did not have until Detective Hall paid for the prescription.  Prior to this incident, the detectives had no information whatsoever that appellant had been involved in any illicit drug activity.

 

                                ** [material omitted] **

 

                                Applying the second part of the test, one must evaluate the type of actions the police used.  The police here picked up appellant, who was young, of limited education and in obvious pain and discomfort due to his broken arm.  Knowing that appellant had a prescription for a controlled substance and no money to pay for it, the police induced him to sell the tablets to them.  In doing so, the detectives induced appellant to engage in criminal conduct by employing methods of persuasion that created a substantial risk that appellant, not otherwise shown to be ready to commit the offense, would commit the offense.

 

                                We conclude that the police activity here cannot, as a matter of law, be sustained under the standards established in Cruz.  Since the police activity here amounted to entrapment as a matter of law, the subjective test need not be discussed.  We must accordingly reverse and remand with directions to dismiss the charges against appellant.

 

                                                                                          End of Opinion

               

                The Florida Supreme Court, in State v. Hunter, 586 So. 2d 319 (Fla. 1991), discussed the due process rights of the defendant as related to entrapment.  The court restricted the rights of the due process to those cases in which for example, an informant is utilized and is to be paid a contingent fee based upon trial testimony.  In State v. Glosson,462 So. 2d l082 (Fla. 1985), the court had ruled that an agreement to pay a confidential informant a contingent fee based upon his cooperation and court testimony, constituted a violation of state and federal due process.  It is thus not such a violation to agree to pay an informant for work done, so long as it is not solely contingent upon testimony.

                It is likewise a violation of due process when police give a confidential informant full authority to set up drug deals, and tell him he would be sentenced for his crimes with no reduction if he fails to provide substantial assistance. Krajewski v. State, 587 So. 2d 1175 (Fla. 4th DCA 1991).

                In Herrera v. State, 17 FLW S 84 (Fla. 1992), the Florida Supreme Court commented on the defense of entrapment and the application of Florida Statute 777.201(2).

 

                                The State charged Herrera with trafficking in cocaine, conspiracy to traffic in cocaine, and obstructing an officer without violence.  These charges resulted from a sting operation initiated by a confidential informant, and Herrera raised entrapment as an affirmative defense.  Herrera asked the trial court to give the jury the former standard instruction on entrapment, the last paragraph of which stated:  "On the issue of entrapment, the State must convince you beyond a reasonable doubt that the defendant was not entrapped."  Instead, the court gave the jury the current standard instruction on entrapment, the final paragraph of which reads:  "On the issue of entrapment, the defendant must prove to you by a preponderance of the evidence that his criminal conduct occurred as the result of entrapment."  The jury convicted Herrera...

 

                                The new paragraph in the entrapment instruction is based on Section 777.201, Florida Statutes (1989), which reads as follows:

 

                                (1)  A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

 

                                (2)  A person prosecuted for a crime shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment.  The issue of entrapment shall be tried by the trier of fact.

 

                                **material omitted**

 

                                Entrapment is a judicially created affirmative defense designed to prevent the government from contending a defendant "is guilty of a crime where the government officials are the instigators of his conduct."  Sorrells v. United States, 287 U.S. 435 (1932). To this end, "[t]he predisposition and criminal design of the defendant are relevant." Id. at 451.  If the defendant "is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activities of its own officials... common justice requires that the accused be permitted to prove it." id.  Thus, we have defined the "essential element of the defense of entrapment" as "the absence of a predisposition of the defendant to commit the offense."  State v. Dickinson, 370 So. 2d 762 (Fla. 1979).  Subsection 777.201(1) now provides

                                that lack of predisposition is an element of the defense.

 

                                **material omitted**

 

                                Entrapment is an affirmative defense and, as such, is in the nature of an avoidance of the charges.  As this Court has previously stated:  "An `affirmative defense' is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question."  State v. Cohen, 568 So. 2d 49 (Fla. 1990).  In considering affirmative defenses the United States Supreme Court has held that "it is normally `within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless `it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'"  

 

                                **material omitted**

 

                                For the first time the State, through the legislature, has decided that the burden is on the defendants claiming entrapment to prove that they were entrapped. S. 777.201(2).  We hold that allocating this burden to a defendant is not unconstitutional....

                                As stated earlier, the lack of predisposition to commit the crime charged is an essential element of the defense of entrapment.  The predisposition to commit a crime however, is  not the same as the intent to commit that crime... The former involves the defendant's character and criminal inclinations; the latter involves the defendant's state of mind while carrying out the alleged criminal act."... Requiring a defendant to show lack of predisposition does not relieve the State of its burden to prove the defendant committed the crime charged. 

                                                                                          End of Opinion

 

                In State v. Williams, 18 FLW S371 (1993), the Florida Supreme Court found that the manufacture of crack cocaine by the Broward County Sheriff's Department for use in reverse sting operations was so outrageous that it violated the due process clause and thus constituted entrapment.  The court was struck by the illegal nature of the process and the type of drug manufactured.     

               

                In Ricardo v. State, 591 So. 2d 1002 (Fla. 4th DCA 1991), the court put the defense of entrapment in perspective by stating:

 

                                Cruz established that there are two aspects of the defense of entrapment:  one tested objectively by the court and the other subjectively by the trier of fact.

 

                                The threshold test is an objective one focusing on the conduct of the law enforcement personnel involved, and whether that conduct falls below the standard of proper use of governmental power.  The trial court addresses this issue by applying a two prong test and making a determination as a matter of law before the case is presented to the jury.

 

                                The first prong of this inquiry is whether the police conduct has as its goal the interruption of a specific ongoing criminal activity.  This inquiry thus addresses the problem of law enforcement personnel "making crime", that is, police seeking to prosecute a criminal where no crime would have been committed but for the police conduct constituting a criminal offense where the individual normally would have engaged in such conduct.

 

                                If either prong is violated, then there is entrapment as a matter of law and the entrapped individual is entitled to be discharged.  Simply for the sake of completing the Cruz analysis, we point out that where neither prong of the objective test is violated, the defendant may present his affirmative defense of entrapment to the jury or other trier of fact by alleging that he or she was not predisposed to commit the offense.  See S. 777.201(2), Fla. Stat. (1989).  The test to be applied at this stage is a subjective one.

 

                                **material omitted**                      

 

                                                                                          End of Opinion

 

                Subsequent to the decision in the Cruz case, the Florida legislature enacted F.S. 777.201, which provides:

 

                                (1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer, perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

 

                                (2) A person prosecuted for a crime shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment.  The issue of entrapment shall be tried by the trier of fact.

 

                The Florida Supreme Court in Munoz v. State, 18 FLW S537 (1993) reviewed the effect of this statute on the Cruz decision, and overturned the test in Cruz for the subjective test as enunciated by the United States Supreme Court.  The Court stated:

 

                                The first question to be addressed under the subjective test is whether the agent of the government induced the accused to commit the offense charged.  On this issue the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence.  If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged; that is, whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.  On this second question, according to our decision inHerrera, the defendant initially has the burden to establish lack of predisposition.  However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt.

 

                                ****

 

                                The third question under the subjective test is whether the entrapment evaluation should be submitted to the jury.

 

                                ****

 

                                Consequently, we construe section 777.201 as requiring the question of predisposition to be submitted to a jury when factual issues are in dispute or when reasonable persons could draw different conclusions from the facts.  In certain instances, however, as illustrated by Sherman and Jacobson, the trial judge and appellate courts clearly have the authority to rule on the issue as a matter of law.  To hold otherwise would violate due process.

 

                                                                                          End of Opinion

                                 

                The United States Supreme Court in Jacobsen v. U.S., 51 Cr.L. 2003 (1992), ruled that repeated government efforts to lure a Nebraska farmer into ordering magazines depicting nude male boys engaged in sex, constituted entrapment.  The government obtained the defendant's name and address from a California bookstore mailing list, from which the defendant had previously ordered two books.  These books depicted nude young males, but were not illegal under federal of Nebraska law at the time ordered.  A solicitation effort through the mails by postal authorities and later customs, couched in terms interlaced with the protection of constitutional freedom of expression, finally, after two and a half years of solicitation, the defendant ordered a magazine which depicted young boys engaged in sexual activities.  He was arrested after a controlled delivery.  The Court ruled that the government failed, as a matter of law, to adduce evidence to support the jury verdict tha Jacobsen was predisposed to commit a crime independent of the government's acts and conduct.  (The entire opinion appears in the chapter dealing with Constitutional law).

 

H. Duress

 

                Duress may be a defense to a criminal act, but in order for it to be so, it must involve a threat to the person, not just a threat to de­stroy or deprive one of his property. Also, the threat against the per­son must be a present threat and cannot be a conditional or future threat .

                Duress is never a defense where there is a killing or murderous assault. The threat to the person must involve imminent danger of death or great bodily harm, but even then never justifies the killing of another human being.

                Many times, the element of duress and the possible defense of entrapment or acting at the direction of a supervisor will overlap. This possibility was discussed in the case of Hall v. State, 198 So. 60 (Fla. 1940), in which the Supreme Court of Florida stated:

 

                                From a judgment of conviction of breaking and entering a building with intent to commit a felony, to-wit, grand larceny the defendant appealed.

 

                                ** [material omitted] ** 

 

                                (2) The seventh and eighth questions are as follows:

 

                                `Is it error for the court to charge the jury as follows: "The Court charges you further, Gen­tlemen, that if you believe from the evidence that the defendant might have been acting un­der the orders of a superior officer in going therein, that would not justify him in the commission of any crime?" '

 

                                `Is it error for the Court to refuse to charge the written request of the defendant as follows: "I charge you further, Gentlemen of the Jury, that if you find in this case that the defendant did not desire to do anything wrong, and was per­suaded into it by the act of any superior officer in the Police Department, for the purpose of en­trapping the defendant, and the Police Depart­ment originated and started it, of course, it is improper and the defendant should be acquit­ted ?" '

 

                                We must hold that there was no reversible error on the part of the Court in its action in regard to the charges referred to in these questions because the record does not disclose any such case of entrapment as would cause the accused to be immune from prosecution or conviction.

 

                                (3) The applicable rule as to this matter is stated in 16 C.J. 87 and 88, Sections 56 and 57, as follows:

 

                                `Acting under Authority or Direction of Others. ‑‑The general rule is that a person who is acting under the authority of a superior is guilty if his acts are illegal, even if he acts under the orders of his superior. This rule, however, is not with­out exceptions. Under some circumstances the order of a superior officer may or must be obeyed, and in such a case the act will be justifi­able or excusable as done under compulsion.'

 

                                `Acting as Agent or Employee of Another.‑‑ It is no defense to a criminal prosecution to prove that the accused committed the crime in the sup­posed discharge of his duty as agent or employee of another person, for it is well settled that the command of a master to a servant, a principal to his agent, or a parent to his child will not justify a criminal act done in pursuance thereof.'

 

                                `So the officers or agents of a corporation who violate state laws or municipal ordinances may be arrested and punished like other individual offenders. While a corporation can act only through its officers, agents and employees it cannot authorize them to violate the criminal law of the state without responsibility for their acts. For ultra vires acts the agents responsible for them are usually the only ones who may be punished, but for acts not ultra vires the agents may be punished, although the corporation, if it authorized or directed the act, may also be punished as a joint offender.'

 

                                `Entrapment and instigation. While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instiga­tion, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission.'

 

                                (4) The accused was a police officer and the facts stated most favorable for the defendant are: That some robberies had been committed from stores in the vicinity of the store referred to in the information in this case and that the owner of the store delivered to the police department a key to the store for the purpose of having the store left unlocked and, in such condition, to be watched by the police for the purpose of catching anyone who might be engaged in those robberies. While certain police officers were watching the store this policeman entered the store, made some investigation, came out of the store, closed the door and reported his so finding the store unlocked to the police sergeant at the desk at police headquarters. This was at about 11:15 P.M. His written statement in regard to what transpired is as follows:

 

                                `On Sept. 13th at 11:15 P.M. 1939, I found the front door of Cy's Mens Shop unlocked and re­ported it to Sgt. Emry Wall on the desk, he told me to get him some socks, undershirts and pants before I locked it up. I went back at 2 :30 A. M . Sept. 14th 1939. I went back to Cy's store, opened the front door and went in. I took 1 pr. pants, 3 pr. socks and 2 undershirts for Sgt. Wall at his request. I took 1 pr. pants, 1 coat and 6 undershirts for myself. I put all these articles out the back door, locked up the store, came out the front way and was arrested by Sgts. Schwarz, McGriff and Detective Gooding when I went around to the back of the store to pick up the merchandise. I wish to state further that I was acting under Sgt. Walls orders when I left this door open and got the mdse. for him at his request . '

 

                                If the statement be true, it was not the defendant's duty to follow the suggestions or request of the desk sergeant to commit the crime which he confessedly committed. It was not an act in line with duty. It was an act in violation of law and crime against society and the defendant, of course, knew this at the time he committed the act. He also well knew that the desk sergeant had no authority to authorize or direct him to enter the building and take therefrom the property of another. If the statement of defendant as set forth in the signed statement, supra, is true it, at most, only showed that the desk sergeant was an accessory be­fore the fact to the commission of the crime and consti­tuted no defense in behalf of the defendant when prose­cuted as the actual perpetrator of the crime.

 

                                The judgment should be affirmed and it is so ordered. Affirmed.

 

                                                                                          End of Opinion

 

I. Self-Defense

 

                The defense of self-defense is an affirmative defense which must be raised and proven by the defendant. In order for self-defense to be used as a defense to a criminal act, the defendant must be able to show that he felt that he was in imminent danger of bodily harm. It is also necessary that the amount of force used by the defend­ant is reasonable under the circumstances. The use of unreasonable force in repelling such a threat will not be self-defense and will make the defendant the aggressor.

                The test in the issue of self-defense is how much force would a reasonably prudent man be justified in using under the same circum­stances. When a person chooses to defend himself from death or seri­ous bodily harm, resulting from a felonious attack on his person, and death results, it is called justifiable homicide. When the defendant, in self-defense, slays another individual but is, to some degree, at fault for getting into the situation, the homicide is ruled excusable.

                Deadly force is never justified for the defense of property, even if it is one's home. Reasonable force, short of deadly force, may be used. The only time deadly force may be used to protect property is when there is imminent danger of an attack threatening lives or serious bodily harm.

                A more detailed discussion of the defense of self-defense will appear in the area dealing with homicide.

                There are certain restrictive factual situations wherein the courts have declared that necessity may be a defense against crimi­nal activity. For instance, individuals who are stranded on a drifting ship may be authorized to go into the ship's hold and steal food belonging to another in order to stay alive.

                The law itself may authorize an otherwise illegal act, such as execution of prisoners sentenced to death under the laws of a parti­cular jurisdiction. Thus, there may be legal justification for an act that may be used as a defense to a crime. Generally speaking, how­ever, guilt of others involved in criminal activity, or the failure on the part of the state to prosecute some other guilty party, may not be used as a defense to criminal activity