Dayton Criminal Law Summer 2026 Readings
Dayton Criminal Law Summer 2026 Readings. Turned into a podcast using google notebook lm. Not affiliated with University of Dayton.
Dayton Criminal Law Summer 2026 Readings
Week 12 Casebook Reading
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You know, usually when we talk about a medical diagnosis, um, there's this expectation of absolute precision. Aaron Powell Right.
SPEAKER_01It feels almost like engineering.
SPEAKER_00Exactly. Like you break your arm, they take an x-ray, and it shows that jagged white line on the screen, and the doctor just points at it and says, you know, there it is.
SPEAKER_01Yeah, it's it's broken or not broken, it's clean.
SPEAKER_00Aaron Powell Right. It's visible, and we can easily categorize it. But the moment you step into the world of neurodevelopment or trauma and and specifically how the criminal justice system handles human behavior.
SPEAKER_01Aaron Powell Oh, that X-ray machine just completely shatters.
SPEAKER_00It really does. We are suddenly looking at a diagnostic landscape that is incredibly murky. So today, for you listening, whether you're prepping for a law exam or you're just insanely curious about human behavior, we are doing a deep dive into the absolute boundaries of human culpability.
SPEAKER_01Aaron Powell It's a fascinating area because it tests the limits of what we consider a crime.
SPEAKER_00Exactly. I mean, from climate change pipeline protests to high-speed escapes with failing breaks, or, you know, even people claiming they received direct commands from God. We are exploring the exact moment the legal system decides to just to forgive an otherwise illegal act.
SPEAKER_01Aaron Powell We're looking at things like necessity, duress, competency, insanity, and diminished capacity.
SPEAKER_00Yeah. And the thing to keep in mind here is that the law isn't just a static rule book, right?
SPEAKER_01Not at all. It is really a living reflection of our collective moral anxieties. I mean, every time a court decides to excuse a crime, they're drawing a very specific line around the limits of free will. Right. We are essentially asking a fundamental question: at what point is a person no longer the author of their own actions?
SPEAKER_00Aaron Powell Which is heavy. So we've been talking about the law treating the human mind like a rational calculator, right? Like the baseline assumption is that you weigh the pros and cons and then you choose your actions.
SPEAKER_01That's the foundation of criminal intent. Yeah.
SPEAKER_00Aaron Ross Powell But to start making sense of these criminal excuses, we kind of have to look at situations where the calculator is functioning perfectly, but the inputs are just they're so extreme that a person feels utterly forced to commit a crime.
SPEAKER_01Yes. And if we look at the historical roots of this, the common law split these really extreme situations into two distinct buckets.
SPEAKER_00Aaron Ross Powell Based on where the pressure was coming from, right?
SPEAKER_01Trevor Burrus Exactly. So historically, the law distinguished between situations where you are forced by, say, the blind elements of nature.
SPEAKER_00Okay.
SPEAKER_01And situations where you were forced by the conscious malice of another human being.
SPEAKER_00Aaron Ross Powell Right, which gives us these twin defenses.
SPEAKER_01Aaron Powell Yeah. Necessity, which is also known as the choice of evils, and then duress.
SPEAKER_00Aaron Powell Okay. So if I'm understanding the distinction here, necessity is when physical environmental forces completely beyond your control make breaking the law the lesser of two evils.
SPEAKER_01Trevor Burrus That's the core of it.
SPEAKER_00Like the classic textbook example, right?
SPEAKER_01Right.
SPEAKER_00A massive storm is coming and you intentionally destroy a privately owned damage.
SPEAKER_01To prevent a much worse flood.
SPEAKER_00Right. A flood that would wipe out a whole town down in the valley. Like you absolutely committed the crime of destroying property. Trevor Burrus, Jr.
SPEAKER_01But nature forced your hand. You did it to prevent a catastrophic loss of life.
SPEAKER_00Right.
SPEAKER_01The elements of the universe essentially cornered you.
SPEAKER_00Trevor Burrus Okay, so that's necessity. And then duress, on the other hand, is the excuse you use when the coercion comes from a human being.
SPEAKER_01Aaron Ross Powell Yes. So instead of a storm threatening the town, a person holds a loaded gun to your head and says, you know, destroy that dam or I will kill you right now.
SPEAKER_00Wow. Okay, so in both scenarios, I'm destroying the dam.
SPEAKER_01Right. But in the first, you claim necessity. In the second, you claim duress. Now, modern courts have tended to blur this distinction a little bit, leaning more into a general justification versus excuse framework.
SPEAKER_00Okay.
SPEAKER_01But understanding those common law roots, nature versus human, is really crucial for grasping the underlying philosophy.
SPEAKER_00Aaron Powell, which actually brings us to a really heartbreaking case in our sources that tests the absolute limits of this necessity defense, specifically that idea of the choice of evils.
SPEAKER_01Aaron Powell You're talking about the Fontez case?
SPEAKER_00Yeah, the 2004 Colorado case, uh People V Fantes. So Jesus Bernardo Fantes was arrested after he presented a false ID and tried to cash a forged payroll check for I think it was $454.75 at a convenience store.
SPEAKER_01And the reason he resorted to forgery here is just devastating.
SPEAKER_00It really is.
SPEAKER_01His wife testified at trial that they had three children ranging in age from 16 months to 11 years old, and and all three suffered from very serious health problems. Trevor Burrus, Jr.
SPEAKER_00Right. And they hadn't eaten in over 24 hours.
SPEAKER_01Exactly. Fontes had desperately gone to, I think, three different food banks and had been turned away.
SPEAKER_00Which is just awful to think about.
SPEAKER_01Yeah, and he was terrified that the lack of food was going to exacerbate his children's medical conditions and lead to severe malnutrition or or even death. So feeling completely cornered by poverty and his children's illness, he forged a check.
SPEAKER_00It's basically the ultimate Jean Valjean Les Miserables analogy. I mean, he is literally stealing bread to save a starving child.
SPEAKER_01That's exactly how the defense framed it. At trial, Fontez's attorney wanted to request a choice of evils jury instruction. Right. They wanted to argue to the jury that the nonviolent crime of forgery was a lesser evil compared to the imminent physical injury and starvation of his kids.
SPEAKER_00But and this is where the law feels so cold, the trial court refused to even let the jury hear that defense.
SPEAKER_01They completely shut it down.
SPEAKER_00Yeah. And then the appeals court affirmed that refusal. Which just feels I mean, if the law allows you to blow up a dam to save a town, why won't it let a father forge a check to save his kids?
SPEAKER_01Well, the court did acknowledge the tragic circumstances. I mean, they explicitly stated in their opinion that they were, quote, not without sympathy for the downtrodden.
SPEAKER_00Well, that's nice of them, eh?
SPEAKER_01Right. But they drew a very harsh, inflexible line. Economic necessity alone cannot support a choice of crime.
SPEAKER_00Because of the statute.
SPEAKER_01Exactly. To understand why, we have to look at the strict statutory requirements for the choice of evils defense in Colorado. The statute requires the sudden and unforeseen emergence of a situation that requires immediate action to prevent an imminent injury.
SPEAKER_00Wait, so they didn't view a starving family as a sudden and unforeseen emergency.
SPEAKER_01Precisely. First, the court said Fontes failed to establish an imminent threat of injury, arguing that hunger is gradual.
SPEAKER_00Oh, wow.
SPEAKER_01Second, you have to prove there were no reasonable legal alternatives. The court felt he hadn't exhausted every conceivable legal avenue. Maybe other charities or government agencies or emergency rooms.
SPEAKER_00Even though he went to three food banks.
SPEAKER_01I know. And third, Colorado law requires a direct causal connection between the action taken and the harm presented. The court felt that causal link was absent because of the nature of forgery and the relatively large amount of the check.
SPEAKER_00So cashing a $454 check isn't seen as the same direct action as like swiping a loaf of bread from a bakery counter.
SPEAKER_01Legally speaking, no.
SPEAKER_00I have to wonder though, I mean, is the court's rigid stance against economic necessity purely a fear of opening the floodgates?
SPEAKER_01Oh you mean?
SPEAKER_00Like if we allow this, the logic goes, everyone with a late utility bill can start robbing banks, or is there a deeper, more systemic philosophy about property law at play here?
SPEAKER_01Definitely both, but the floodgates argument is the dominant undercurrent. Think about it. If courts legitimized economic inequality as a legal justification for property crime, it would fundamentally destabilize the entire framework of American property law.
SPEAKER_00Because suddenly needs overrides ownership.
SPEAKER_01Exactly. The legal system relies on the absolute premise that poverty is not a licensed steal. You could actually trace this exact anxiety back to a 1933 Washington case, State VMO.
SPEAKER_00Oh, during the Depression.
SPEAKER_01Yes. Unemployed, desperate workers marched on a commissary and stole groceries during the height of the Great Depression. The court barred the defense of economic necessity there, too. Wow. Economic hardship in the eyes of the law is viewed as an ongoing societal condition. It's a chronic illness of society, not a sudden and unforeseen emergency.
SPEAKER_00Okay, so if poverty and starvation don't count as a sudden and unforeseen emergency, what does? Let's look at another case from our stack that provides a pretty sharp contrast.
SPEAKER_01Geljack v State.
SPEAKER_00Yes. A 1996 Indiana case. So Kenneth Geljack was an habitual traffic offender. His driving privileges were suspended for 10 years.
SPEAKER_01Meaning he legally should not have been behind the wheel of a car under any circumstances.
SPEAKER_00Period. But one day, he's a passenger in a car driven by his wife, and his daughter is in the back seat. His wife notices the brakes are feeling spongy, like they're failing. Right. They manage to make it to a scheduled doctor's appointment. But while his wife and daughter are inside the clinic, Geljack makes this split-second decision. Instead of calling a tow truck, he decides to drive the car to a nearby brake shop himself.
SPEAKER_01Because he's terrified of his family riding in a dangerous vehicle on the way home.
SPEAKER_00Exactly. But on the way to the shop, the brakes completely fail, he runs a red light, and a police officer pulls him over and arrests him for driving with a suspended license.
SPEAKER_01And here, unlike Fontez, Geljack is allowed to claim the affirmative defense of an emergency. Okay, why the difference is Under the Indiana Code, it is a specific defense if operating a vehicle was necessary to save life or limb in an extreme emergency. But the procedural mechanics of how an affirmative defense works are what make this case so fascinating.
SPEAKER_00Because it's about who has to prove what, right?
SPEAKER_01Yes. Gail Jack argued on appeal that putting the burden of proof on him to prove the emergency was unconstitutional. His argument was based on the bedrock principle that the state is supposed to prove every element of a crime beyond a reasonable doubt.
SPEAKER_00So if I'm understanding his argument, he's basically saying, I'm innocent until proven guilty. The state has to prove I committed a crime. Why should I have to prove to the jury that I'm innocent because of an emergency?
SPEAKER_01It's a very logical question. But the court's response requires us to separate the idea of negating an element of a crime from mitigating culpability.
SPEAKER_00Okay, break that down for us.
SPEAKER_01The court explained that proving an emergency doesn't mean Gel Jack didn't commit the crime. I mean, he did operate a motor vehicle. His license was suspended. And he knew it was suspended.
SPEAKER_00Right. The facts are undeniable.
SPEAKER_01The state easily met its burden and proved all the factual elements of the crime beyond a reasonable doubt.
SPEAKER_00Aaron Powell So the affirmative defense doesn't erase those facts. It just adds context.
SPEAKER_01Exactly. The emergency defense basically says, yes, the conduct was factually criminal, but under these highly specific sudden circumstances, society justifies the action.
SPEAKER_00Okay.
SPEAKER_01And because it is a justification and not a denial of the facts, the burden of persuasion legally shifts to the defendant. But, and this is a crucial distinction, he doesn't have to prove the emergency beyond a reasonable doubt.
SPEAKER_00Oh, he doesn't.
SPEAKER_01No, he only has to prove it by a preponderance of the evidence. Which simply means it is more likely true than not. If he can tip the scales just past 50% that it was a genuine emergency, the jury could acquit him.
SPEAKER_00That is fascinating. It's incredible how the law categorizes crises. Like Fonte's situation was viewed as a chronic systemic problem that he should have found a legal way to navigate, while Geljack's failing breaks were a sudden mechanical crisis that forced his hand.
SPEAKER_01The time frame really matters to the courts.
SPEAKER_00It does. But that strict requirement in the choice of evil's defense that a defendant must have no legal alternative, it naturally raises a massive looming question. Yeah, that's what happens when the legal alternatives technically exist on paper, but in reality they feel completely broken or futile or just practically useless.
SPEAKER_01And that exact question pulls us directly into the turbulent legal waters of civil disobedience.
SPEAKER_00Yes. And before we dive into this section, I want to make something crystal clear to you, the listener. The cases we are about to discuss deal with highly charged political topics.
SPEAKER_01Very charged.
SPEAKER_00Specifically climate change, environmental protests, and government policy. In this deep dive, we are looking exclusively at the legal architecture. We take absolutely no sides on the politics, the science, or the ideology of the actors involved.
SPEAKER_01That is a vital disclaimer. Because the courtroom often becomes a proxy battleground for these exact ideological clashes, and courts are incredibly wary of allowing that to happen.
SPEAKER_00Exactly. Our mission is purely to impartially report on how the courts handle these actions under the framework of the law. So, with that said, let's look at the 2019 Washington case, State v. Ward.
SPEAKER_01Right, the pipeline case.
SPEAKER_00Yeah. Kenneth Ward broke into a Kinder Morgan pipeline facility. He cut a padlock, entered the secure facility, and manually closed a main valve on the Trans Mountain pipeline. He then placed a bouquet of sunflowers on the valve and basically just waited to be arrested.
SPEAKER_01It was a very deliberate act.
SPEAKER_00Very. His goal was to temporarily stop the flow of Canadian tar sands oil to refineries, protesting what he argued was catastrophic government inaction on the climate crisis. So he was arrested and charged with second-degree burglary and criminal sabotage.
SPEAKER_01And Ward didn't deny any of it. He fully admitted he did it. But he wanted to raise the common law and necessity defense. Trevor Burrus, Jr.
SPEAKER_00The choice of evils again.
SPEAKER_01Exactly. He wanted to argue to the jury that he reasonably believed breaking the burglary laws was absolutely necessary to avoid a much greater harm, the escalating effects of global climate change.
SPEAKER_00But he hit a procedural wall, didn't he?
SPEAKER_01A huge one. At his second trial, the judge granted the state's motion in La Mine to exclude all of his testimony and expert witnesses regarding the necessity defense.
SPEAKER_00Okay, so for the listener, a motion in La Mine is a pretrial request asking the judge to rule that certain evidence cannot be presented to the jury at all. Usually it's because the evidence is irrelevant or highly prejudicial. Right. But in this case, it sounds like the judge was preemptively building a wall around the jury, ensuring they never even heard Ward's reasons.
SPEAKER_01It's a bit more severe than a simple refusal. A motion in La Mind in this context is the judge determining that even if the jury believes every single word the defendant says, it legally wouldn't satisfy the requirements of the defense.
SPEAKER_00So they just cut it off at the knees.
SPEAKER_01The judge essentially said, even if everything you say about climate change is true, your actions don't meet the legal standard for necessity defense, so we aren't going to waste the jury's time or risk confusing them with irrelevant political testimony.
SPEAKER_00But the appeals court actually reversed that decision. They said he did have a Sixth Amendment right to present this defense to a jury. How did he overcome that wall?
SPEAKER_01Well, it comes down to dissecting the four elements of the necessity defense in Washington State.
SPEAKER_00Okay, what are they?
SPEAKER_01First, you reasonably believe the crime is necessary to avoid a harm. Second, the harm avoided is genuinely greater than the harm caused by the crime. Third, you didn't bring about the threatened harm yourself.
SPEAKER_00Makes sense.
SPEAKER_01And fourth, and this was the main battlefield. No reasonable legal alternative existed.
SPEAKER_00And the state's argument there is pretty obvious, right? Of course he had legal alternatives. He lives in a democracy. He could vote, he could lobby Congress, he could write letters to his senator, organize a peaceful march.
SPEAKER_01Yes. The state argued that the democratic process is the legal alternative. But Ward came to court incredibly prepared. He didn't just offer his own opinion.
SPEAKER_00What did he have?
SPEAKER_01He offered a curriculum vitae of eight expert witnesses, including climate scientists and political analysts, along with his own 40 years of personal history working in environmental advocacy.
SPEAKER_00Wow. Okay, so he brought receipts.
SPEAKER_01He wanted to present data and testimony, arguing that decades of legal alternatives, incremental change, petitioning, lobbying had proven mathematically and historically entirely futile in stopping the specific harm of carbon emissions.
SPEAKER_00But how do you legally prove that participating in a democracy is futile? That seems impossible.
SPEAKER_01He relied on a previous Washington case, State v. Parker, which established a crucial precedent. Parker said a defendant can show they have no reasonable alternative if a quote history of futile attempts revealed the illusionary benefits of the alternative.
SPEAKER_00Illusionary benefit.
SPEAKER_01Right. You don't have to keep trying something that has empirically failed for decades. The appeals court ruled that whether Ward's belief in the futility of legal alternatives was reasonable is a question of fact for the jury to decide, not a question of law for the judge to dismiss pretrial.
SPEAKER_00So the jury should be allowed to hear the experts and decide if lobbying was truly an illusionary benefit. Now, to be totally accurate to the historical record, while Ward won the right to a retrial with that necessity defense, he ultimately just pleaded guilty to a misdemeanor trespassing charge to resolve the case. But the legal precedent was set in Washington.
SPEAKER_01It was.
SPEAKER_00However, here is where it gets incredibly legally complicated. Just a year later, in 2020, a completely different Washington appellate court directly rejected the reasoning of the Ward case in another protest case.
SPEAKER_01State etzrol, Haskell.
SPEAKER_00Yeah, Haskell. The judicial system is definitely not a monolith.
SPEAKER_01No, and Haskell proves that. In Haskell, protesters physically obstructed a train delivering fossil fuels. They also wanted to use the necessity defense based on climate change. But the court in Haskell laid down a massive, impenetrable roadblock.
SPEAKER_00What did they say?
SPEAKER_01They ruled that the necessity defense never applies to persons who engage in civil disobedience by intentionally violating constitutional laws. They stated plainly. Which is a fundamental, rigid defense of the rule of law. The court's position in Haskell is that if the law itself is constitutional, like a law against trespassing on train tracks, you cannot break it just because you passionately disagree with a broader policy outcome.
SPEAKER_00Even if you feel your legal avenues aren't working fast enough.
SPEAKER_01Right. Because to allow the necessity defense in that scenario would essentially allow citizens to override the legislature whenever they felt strongly enough about an issue.
SPEAKER_00But that ruling prompted an incredibly powerful philosophical dissent from Judge Fearing in the Haskell case. And this is a quote that really sticks with you when you think about the limits of the justice system.
SPEAKER_01Yeah, this is his quote.
SPEAKER_00Yes. He argued that telling protesters to just keep lobbying when they have overwhelming evidence that lobbying is completely ineffective is, quote, like Zeus's dictate to Sisyphus to forever roll a boulder up a hill in Hades.
SPEAKER_01It perfectly encapsulates the tension at the heart of civil disobedience. I mean, if the legal alternatives provided by the state are genuinely functionally useless in preventing a catastrophic harm, does the law demand that citizens just keep pushing the boulder up the hill anyway, knowing it will roll back down?
SPEAKER_00Right. Or does the necessity defense offer a necessary democratic release valve for that frustration?
SPEAKER_01And courts across the country have tried to manage this tension by splitting civil disobedience into two distinct legal categories. Yeah. Direct and indirect.
SPEAKER_00Yes. To understand this, let's look at United States v. Montani Sans. So Jose Montani Sans illegally trespassed onto a U.S. Navy base in Puerto Rico to protest the Navy's use of the island for military training and bombing exercises. This is classified by the courts as indirect civil disobedience. Correct. So if I'm tracking the logic here, it's indirect because he wasn't protesting the law against trespassing. He wasn't saying like trespassing should be legal everywhere. He was intentionally breaking the trespassing law to draw attention to a completely different unrelated policy, uh, military training.
SPEAKER_01You've got the concept perfectly. Direct civil disobedience, on the other hand, would be like Rosa Parks refusing to give up her seat on the bus.
SPEAKER_00Because she was directly breaking the specific localized segregation law that she was protesting.
SPEAKER_01Exactly. And courts are far more hostile, almost universally, to indirect civil disobedience when it comes to the necessity defense. The Ninth Circuit Court of Appeals has explicitly stated that in cases of indirect civil disobedience, the necessity defense is generally inapplicable per se.
SPEAKER_00Why does the legal system draw such a hard, unforgiving line against indirect civil disobedience? What are they afraid of?
SPEAKER_01Well, as the Ninth Circuit noted, courts are terrified of litigants distorting an age-old common law doctrine meant for immediate physical emergencies, like escaping a burning building into a free pass to get political grievances discussed on the public record in a courtroom.
SPEAKER_00Oh, I see.
SPEAKER_01They fear the necessity defense would just be weaponized to gain notoriety for a cause, effectively turning the judiciary into a political theater rather than a venue for determining individual guilt or innocence.
SPEAKER_00Okay, I want to test this direct versus indirect framework with you because it feels like there could be edge cases.
SPEAKER_01Let's hear it.
SPEAKER_00Let's look at problem 53 from our stack of sources. It's a hypothetical scenario, but it pushes the boundaries of how we define harm.
SPEAKER_01Okay.
SPEAKER_00Imagine Jean. Jean is a brilliant college honor student. She is deeply upset with what she perceives as fatal flaws in airport TSA security.
SPEAKER_01Very relevant concern.
SPEAKER_00Right. She believes a terrorist attack is imminent because of these flaws. So Jean writes letters to the TSA, calls the FBI, petitions her congressperson, she gets absolutely no reply. The legal alternatives are futile.
SPEAKER_01Boulders rolling down the hill.
SPEAKER_00Exactly. So to prove a point and force the government to act, Jean smuggles deadly box cutters into the restrooms of four different commercial airplanes over the course of a month, leaving them taped under the sinks. Wow. Okay. Afterward, Jean calls the FBI and TSA to report exactly what she did, where the weapons are, and how she exploited the security flaw. Can Gene use a necessity defense? And does this fall within the acceptable limits of civil disobedience?
SPEAKER_01It's a fascinating hypothetical because it touches on every nerve of the defense. But if we apply the legal framework, Jean will almost certainly fail on multiple catastrophic fronts.
SPEAKER_00Really? Even though she's trying to prevent a massive attack.
SPEAKER_01First, under the Montan Sans distinction is this direct or indirect civil disobedience. Jean is breaking federal aviation security laws, but Jean isn't protesting the existence of the law against weapons on planes. She actually wants those laws enforced better.
SPEAKER_00Right. She's not saying we should be allowed to have box cutters.
SPEAKER_01So it is unquestionably indirect civil disobedience, which makes the defense highly unlikely to be permitted right out of the gate.
SPEAKER_00But what about the greater harm element? She's trying to prevent a hypothetical 9-11 scenario. Isn't that the greatest harm possible?
SPEAKER_01And that is the fatal flaw in her legal strategy. Courts require a strict calculus of the harms. The harm Jean actually caused, placing deadly weapons on multiple commercial flights, creates a massive, immediate, and terrifying risk to public safety.
SPEAKER_00But she told them where they were.
SPEAKER_01Doesn't matter. The harm Jean sought to avoid was a theoretical, abstract, future breach of security by an unknown third party. Courts require the harm you are avoiding to be imminent and undeniably greater than the harm you cause.
SPEAKER_00Okay, I see.
SPEAKER_01Smuggling weapons onto planes creates an immediate catastrophic risk that far outweighs the abstract benefit of auditing TSA protocols. A judge would look at this, grant a motion and limit immediately, and exclude the necessity defense entirely.
SPEAKER_00Okay, so necessity deals with systemic harms, natural disasters, or abstract policy threats. You are weighing the choice of evils. But what if the threat isn't a government policy or a storm? Right. What if the threat is a violent person standing right in front of you, breathing down your neck? We shift away from the calculus of the choice of evils and into the sheer terrifying coercion of duress.
SPEAKER_01Yes. And to truly understand the mechanics of duress, we have to look at the Washington State case of State v. Harville.
SPEAKER_00This case is incredibly tense. So Joshua Harville sold cocaine to a police informant named Michael Nolte during an undercover sting operation. At trial, Harville doesn't deny it. He admits he sold the drugs, but he claims he only did it because Nolte absolutely terrified him.
SPEAKER_01He wants to claim duress.
SPEAKER_00Yes. Nolte had called him like nine or ten times in a row, aggressively demanding, you've got to get me something. And on the day of the bye, Harville was actually at a Chuck E cheese with his family, and he was terrified that if he didn't comply, Nolte would show up at the restaurant and hurt his family.
SPEAKER_01And the physical dynamics between the two men are critical to the legal argument here.
SPEAKER_00Very unbalanced, right.
SPEAKER_01Extremely. Nolte was a five foot ten, two hundred-pound guy who, according to Harville's testimony, used steroids. Harville was much smaller, five foot five and 140 pounds. Right, he knew his history.
SPEAKER_00Harvel worked with Nolte and intimately knew his history of exclusive violence. Harvel testified that Nolte would openly brag about smashing a man's head with a beer bottle and causing permanent brain damage.
SPEAKER_01He knew Nolte had previously stabbed someone. He knew Nolte had nearly broken his own brother's arm in a wrestling match.
SPEAKER_00The guy is a walking red flag, like a terrifying person to owe anything to. But the trial court refused to let the jury hear the duress instruction. They threw it out. Why?
SPEAKER_01Because Nolte never explicitly said the words, sell me the drugs or else I will hurt you.
SPEAKER_00You're kidding, because he didn't spell it out like a cartoon villain.
SPEAKER_01Exactly. The trial court took a very rigid, literal view of what constitutes a threat under the law. They reasoned that because there was no direct verbalized threat of violence conditional on the drug sale, there was no duress as a matter of law.
SPEAKER_00So they thought Harville's fear was just what, paranoia?
SPEAKER_01In their eyes, Harvel's fear was just based on Nalty's general violent behavior, which isn't enough to excuse a crime.
SPEAKER_00But the State Supreme Court reversed that trial court, didn't they?
SPEAKER_01Yes, and their reasoning fundamentally expanded how we understand coercion. They looked at the statutory definition of a threat, which explicitly includes communicating an intent to cause bodily injury, directly or indirectly.
SPEAKER_00Okay, indirectly is the key word.
SPEAKER_01Yes. The court ruled that an implicit threat arising indirectly from the totality of the circumstances is entirely sufficient to trigger a duress defense.
SPEAKER_00Which just makes basic common sense.
SPEAKER_01Right. When a much larger man with a known, documented history of extreme violence aggressively demands drugs from you, repeatedly calling you while you're with your family, the or else is heavily, undeniably implied.
SPEAKER_00You don't need him to say it. You feel it.
SPEAKER_01The state Supreme Court ruled that the jury has the absolute right to hear those facts and decide for themselves if Harville's fear of imminent grievous bodily harm was reasonable.
SPEAKER_00Okay, so duress works for intentional crimes like selling drugs. But does it work for crimes where your intent doesn't even legally matter? I'm looking at state v Rios, where a man was charged with a strict liability crime DWI driving while intoxicated.
SPEAKER_01This is a fantastic nuance in the law. To understand it, we first have to define what strict liability actually is.
SPEAKER_00Let's do it.
SPEAKER_01Most crimes require both an actus rius, the guilty act, a mens rhea, the guilty mind or intent.
SPEAKER_00The action and the intention.
SPEAKER_01Exactly. But strict liability crimes dispense with the mens rhea entirely. The state doesn't have to prove you intended to commit the crime, only that you did the act. In New Mexico, DWI is a strict liability offense. You don't have to intend to drive drunk. If you are over the limit and behind the wheel, you are guilty.
SPEAKER_00So how does Rios fit into this? Because he was drunk driving.
SPEAKER_01Right. Rios was leaving a bar at closing time, heavily intoxicated. He claimed an angry, violent mob was forming and threatened him with physical violence, so he slowly drove his car away simply to escape being beaten.
SPEAKER_00Okay.
SPEAKER_01The state argued forcefully that you cannot use duress for a strict liability crime. Their logic was that duress is usually used to explain away your criminal intent, like I didn't intend to rob the bank, I only intended to save my own life.
SPEAKER_00Okay, I see where the state is coming from. If intent is legally irrelevant, then the excuse of duress is irrelevant.
SPEAKER_01That was the argument. But the court disagreed with the state. Because the court clarified a major misconception about duress. Duress doesn't disprove a mental state. Duress says, I intentionally did the act. I knew exactly what I was doing, but society should excuse me because of the unbearable surrounding circumstances.
SPEAKER_00So it's not about intent, it's about the overwhelming pressure.
SPEAKER_01Right. The court noted that a blanket ban on duress for strict liability crimes would lead to fundamental absurd unfairness. They actually quoted a dissenting judge from a New Jersey case who said that once in a great while, a DWI case presents facts so bizarre, like a man fleeing a violent mob to save his life, that the court must pause to ensure no injustice is done by blindly applying a strict liability statute.
SPEAKER_00Okay, so you can claim duress for selling drugs to a violent informant. You can claim it for driving drunk to escape a mob, but there is an ultimate limit to this defense, a hard, impenetrable wall.
SPEAKER_01Yes, there is.
SPEAKER_00And that is homicide.
SPEAKER_01Yes. Under the common law, and maintained in nearly all modern jurisdictions, duress is never a defense to the intentional taking of an innocent human life. Never. The Oklahoma case of Long V State states this unequivocally.
SPEAKER_00They quote William Blackstone in that case, the legendary English jurist, who said a person, quote, ought rather to die himself than escape by the murder of an innocent. I have to push back on this, though, because it feels completely detached from human biology. The very high standard. Wait, so if someone literally holds a loaded gun to my head and tells me to shoot a total stranger, the law expects me to be a martyr. How does the legal system reconcile that with the most basic, hardwired human instinct for survival?
SPEAKER_01It is a profound, almost superhuman moral expectation placed upon citizens, and you are right to question it. The legal rationale is that the defense of duress ultimately relies on a choice of evils calculus.
SPEAKER_00Okay.
SPEAKER_01The law says you can choose to commit a lesser crime to avoid a greater harm. You can steal a car to escape a killer because property is worth less than a life.
SPEAKER_00Right.
SPEAKER_01But when you are forced to kill an innocent person to save your own life, the harms are legally and morally equal. One innocent life is not worth more than another innocent life.
SPEAKER_00So you simply cannot trade lives. The math doesn't work out.
SPEAKER_01Precisely. The law refuses to endorse the arithmetic of trading innocent blood. The Oklahoma court stated that any other rule is, quote, simply repugnant to nearly universal standards of decency. The law cannot sanction the intentional killing of an innocent person, even under the most extreme, terrifying coercion imaginable.
SPEAKER_00That is just it's heavy. Does that intense moral standard apply to soldiers in wartime, like the age-old I was just following orders defense that we hear about in war crime tribunals?
SPEAKER_01It is remarkably similar in its strictness. If you look at international law, specifically Article 33 of the Rome Statute, which established the International Criminal Court. Right. Following orders from a superior government or military official does not relieve you of criminal responsibility for international crimes unless three very strict conditions are met.
SPEAKER_00What are they?
SPEAKER_01First, you had a legal obligation to obey. Second, you didn't know the order was unlawful, and third, the order was not manifestly unlawful.
SPEAKER_00Okay, manifestly unlawful, meaning it is so obviously illegal and evil that any rational human being would recognize it instantly.
SPEAKER_01Exactly. This draws heavily from the Nuremberg principles established after World War II. The Rome Statute explicitly states that orders to commit genocide or crimes against humanity are always manifestly unlawful. There's no excuse. You cannot use the pressure of a military chain of command or the fear of being court-martialed or the excuse of superior orders to justify participating in an atrocity. The law demands that your moral duty to humanity supersedes your duty to obey your commanding officer.
SPEAKER_00Wow. Okay, so we've been talking about the law treating the human mind like a rational calculator that is just being fed terrible inputs like a gun to the head or a commanding officer giving an evil order. Right. But if the law relies on us being rational calculators weighing choices, what happens when the calculator's processor is fundamentally broken? That forces us to cross the boundary from external coercion into the internal labyrinth of the mind. And to explore this, we first have to separate two vastly different legal concepts that people constantly mix up: competency and insanity.
SPEAKER_01This is a crucial distinction, and it is entirely about the timeline.
SPEAKER_00Okay, break it down.
SPEAKER_01Competency is about right now. It evaluates the defendant's mental state at the exact time of the trial. The judge is asking, can this person consult with their lawyer? Do they understand the proceedings against them? Do they know who the judge is and what a jury does?
SPEAKER_00So if I can try an analogy here, competency is like asking if your video game controller is plugged in right now. If it's disconnected, if the signals aren't reaching the console, we literally can't play the game of a trial.
SPEAKER_01That's a perfect analogy. And to push your video game analogy further, competency is whether the controller is plugged in today, but it also asks if the player actually understands the rules of the game being played in the courtroom. If they think they're playing Mario Kart, but they are actually on trial for murder, they are incompetent. You cannot constitutionally put someone on trial if they don't understand what is happening to them.
SPEAKER_00Okay. And insanity.
SPEAKER_01Insanity, on the other hand, is about then. It evaluates the defendant's mental state at the exact moment the crime was committed in the past.
SPEAKER_00So going back to the analogy, insanity is looking back at a saved replay of the game to see if there was a glitch in the software when the character made a specific illegal move months or years ago.
SPEAKER_01Aaron Powell That's a great way to visualize it. Because a plea of not guilty by reason of insanity actually presupposes that the defendant is competent to stand trial right now.
SPEAKER_00Oh, I never thought about that.
SPEAKER_01Yeah, you have to be competent. You have to have the controller plugged in today to enter the insanity plea regarding your past actions.
SPEAKER_00Aaron Powell Let's look at the right now first. In 1992, the Supreme Court heard a fascinating case, Medina v. California. This case was all about the procedural mechanics of the burden of proof. If a defendant's competency is in question, who has to prove it? Does the state have to prove the defendant is competent enough to stand trial, or does the defendant have to prove to the court that they are incompetent?
SPEAKER_01It sounds like a minor procedural detail, but it has massive implications. The Supreme Court ruled that a state can constitutionally force the defendant to bear the burden of proving their own incompetence by a preponderance of the evidence.
SPEAKER_00Which means tipping the scale past 50% again.
SPEAKER_01Exactly. And Justice Sandra Day O'Connor wrote a concurring opinion that really laid out the practical, cynical reality of this.
SPEAKER_00What does she say?
SPEAKER_01She argued that if the burden were placed on the government to prove competency, defendants would have a massive incentive to feign incompetence, to fake a mental illness, and refuse to cooperate with court-ordered psychiatric evaluations.
SPEAKER_00Right, because an inconclusive exam would just benefit the defense.
SPEAKER_01Exactly. By putting the burden on the defendant, it forces the defense team to bring forward all their medical evidence, family history, and expert testimony to affirmatively prove the incompetence.
SPEAKER_00But just as Blackman wrote a blistering dissent to that ruling, and I have to say, logically, his argument feels incredibly strong.
SPEAKER_01It really does.
SPEAKER_00He pointed out the fundamental paradox of the court's ruling. If a person is truly severely mentally incompetent, how on earth can we expect them to properly assist their lawyers in proving their own incompetence?
SPEAKER_01Is the ultimate legal catch 22. Blackman argued that trying a potentially incompetent person violates fundamental due process. He quoted Professor Norval Morris, noting that incompetent persons are not really present at trial. They may not be able properly to play the role of an accused person, to project to the trier of facts a sense of their innocence.
SPEAKER_00Wow. Not really present at trial.
SPEAKER_01Yeah. Blackman felt that if the psychiatric evidence is equivocal, like if it's a tie, the state should not be allowed to proceed with a criminal trial. The risk of trying a mentally absent person is just too high a cost for justice.
SPEAKER_00And just to put some scale on this issue, it's not a rare occurrence. The notes from Professor Richard Redding in our sources point out that the prevalence of mental disorders in the justice system is absolutely staggering.
SPEAKER_01It's a crisis.
SPEAKER_00It is. Some studies show up to 80% of inmates in certain prison populations require severe disorder treatment. The Los Angeles County Jail, Cook County Jail in Chicago, and Rikers Island in New York are effectively the largest mental hospitals in the country. This isn't a fringe issue. It is the core reality of the criminal justice system.
SPEAKER_01It is. And it raises a terrifying secondary issue.
SPEAKER_00Which is.
SPEAKER_01What happens if a defendant is found incompetent to stand trial and they have an organic brain issue like severe dementia or untreatable schizophrenia that isn't ever going to get better?
SPEAKER_00Oh, wow.
SPEAKER_01Can the state just lock them in a criminal asylum forever without ever giving them a trial?
SPEAKER_00Right. If the controller can never be plugged in, are they just trapped in legal limbo forever?
SPEAKER_01Historically, yes, but not anymore. In the landmark case, Jackson v. Indiana, the Supreme Court ruled that you cannot hold someone indefinitely based solely on their incompetency to stand trial.
SPEAKER_00Okay, that's a relief.
SPEAKER_01You can only hold them in a criminal facility for a reasonable period of time, necessary to determine if there is a substantial probability that they will regain capacity in the foreseeable future.
SPEAKER_00And if they won't.
SPEAKER_01If they won't, the state must either release them entirely or initiate civil commitment procedures. And civil commitment has entirely different legal standards, requiring clear and convincing evidence of dangerousness than criminal incarceration. The state cannot use criminal incompetence as a backdoor to a life sentence without a trial.
SPEAKER_00Okay, so that is competency. The controller is plugged in, the trial is happening, now we have to look backward to the software glitch. How does a defendant prove they were insane at the time of the crime? And what does insane actually mean in a court of law?
SPEAKER_01This brings us to a massive, highly controversial recent Supreme Court case, Coller v. Kansas from 2020. This case fundamentally examines whether the United States Constitution guarantees a specific historical definition of insanity.
SPEAKER_00Because the state of Kansas essentially went rogue here, right? They rewrote the rules.
SPEAKER_01They did. To understand what Kansas did, we have to look at the history of the traditional tests for insanity. The most famous is the Imnoten rule, established in 1843 in England.
SPEAKER_00And the historical context here is wild.
SPEAKER_01It really is. A man named Daniel McNighton suffered from extreme paranoia and believed the British government was trying to kill him. He attempted to assassinate the British Prime Minister, Robert Peel, but mistakenly shot and killed Peel's secretary, Edward Drummond.
SPEAKER_00Okay.
SPEAKER_01When McNighton was acquitted by reason of insanity, the public and Queen Victoria herself panicked. They demanded a strict rule. The resulting Igniten rule has two rigid prongs.
SPEAKER_00Let's hear them.
SPEAKER_01Prong one is cognitive incapacity. Did the defendant know the nature and quality of the act they were doing? For example, they thought they were squeezing a lemon. They're actually strangling a person.
SPEAKER_00Right, completely detached from reality.
SPEAKER_01And prong two is moral incapacity. Even if they knew what they were doing, did their mental illness prevent them from knowing it was wrong?
SPEAKER_00So Kansas looked at that 1843 rule and said, We are only keeping prong one.
SPEAKER_01Exactly. Kansas passed a law essentially abolishing the traditional insanity defense. They stated that a mental disease or defect is only a defense if it proves the defendant lacked the Men's Refent, the specific intent required for the crime.
SPEAKER_00So if you intended to kill a human being, you are guilty of murder in Kansas, regardless of whether your severe mental illness made you think it was morally justified or like commanded by aliens. Yes. Let's pause and explain mensrea deeply because it's the fulcrum of this entire case. How does a jury determine intent? You can't put a brain under a microscope and find the intent to kill a molecule. Right.
SPEAKER_01Mensrea translates to guilty mind. It is the mental state the prosecution must prove beyond a reasonable doubt. Since juries cannot read minds, they rely on circumstantial evidence.
SPEAKER_00Like what?
SPEAKER_01Did the defendant buy a weapon in advance? Did they lie in wait? Did they express hatred for the victim? In Kansas, if the prosecution can prove that the defendant intended to pull the trigger and intended to end a human life, the mens rea is satisfied. The why, even if the why is entirely driven by a psychotic delusion, is no longer a defense to the crime itself.
SPEAKER_00Which brings us to the tragic facts of the Kaler case. James Kaler, suffering from severe depression and extreme distress amid a divorce, drove to his in-laws' house and murdered his wife, her grandmother, and his two teenage daughters.
SPEAKER_01It's horrific.
SPEAKER_00He was charged with capital murder, and he tried to argue that Kansas had unconstitutionally abolished the insanity defense by removing that second McNighton prong, the moral incapacity prong. He argued his mental state was so degraded he couldn't tell right from wrong at the time of the murders.
SPEAKER_01But the Supreme Court, in a majority opinion written by Justice Elena Kagan, upheld the Kansas law.
SPEAKER_00They sided with Kansas.
SPEAKER_01They did. They ruled that the due process clause of the Constitution does not compel a state to adopt the Ibnoten moral incapacity test. Kagan noted that Kansas still allows mental illness evidence to negate intent at trial and allows it heavily during the sentencing phase to mitigate punishment.
SPEAKER_00So a state's rights issue.
SPEAKER_01Sort of. She argued that defining the exact complex relationship between mental illness, free will, and criminal culpability is a project for state legislatures and democratic governance, not a rigid constitutional mandate imposed by the courts.
SPEAKER_00But Justice Stephen Breyer dissented, and he used a hypothetical that is impossible to forget. It forces you to really sit with the moral weight of what Kansas did.
SPEAKER_01The dog hypothetical.
SPEAKER_00Yes. He said, let's imagine two defendants. Defendant one shoots a person because his severe mental illness makes him genuinely think the victim is a dog. Okay. Defendant two shoots a person because his severe mental illness makes him genuinely think a dog ordered him to kill the victim.
SPEAKER_01It is a brilliant, terrifying distillation of the legal mechanics at play. If we apply the traditional amnesty, both of those defendants are found not guilty by reason of insanity. Defendant one lacked cognitive capacity. He didn't know he was killing a human. Defendant two lacked moral capacity. His severe delusion completely overpowered his moral compass. But under the new Kansas law, under Kansas law, the outcomes diverge radically. Defendant I is acquitted because he lacked the mens rea to kill human being. He intended to kill a dog. Okay. But defendant two, he is convicted of murder. He intended to kill the human being. He knew he was shooting a person, even though his mind was entirely hijacked by a psychotic delusion of a talking dog commanding him to do it.
SPEAKER_00Wait, so defendant one, he thinks it's a dog, so he's fine. Defendant two knows it's a person, but thinks a dog is giving orders, so he's guilty of murder. That is wild.
SPEAKER_01Justice Breyer argued passionately that there is zero moral difference in the culpability of these two defendants. He stated that excising moral capacity from the insanity defense violates 700 years of Anglo American legal tradition, which has always held that a person cannot be morally cultible if they cannot comprehend morality.
SPEAKER_00That is heavy. It really makes you question the fundamental purpose of criminal punishment. I mean, are are we punishing people to deter others? Because you can't deter a delusion.
SPEAKER_01All right, deterrence fails there.
SPEAKER_00Are we punishing them for retribution, how can you seek retribution against a broken processor? And the legal tests vary so wildly across the country. You have Mniden, you have the irresistible impulse test, which adds a volitional element, maybe you know it's wrong, but your mental illness means you physically cannot stop yourself.
SPEAKER_01And you have the model penal code test, which looks at whether you lack substantial capacity to appreciate criminality or conform your conduct.
SPEAKER_00And then there's New Hampshire which has a totally different approach and just asks the jury if the crime was the product of a mental disease.
SPEAKER_01It really highlights how much the legal system struggles to translate the nuance of psychiatry into the binary machinery of justice. Psychiatry recognizes spectrums. The law demands a verdict.
SPEAKER_00Which brings us to a specific, incredibly intense exception to these rules the Divific decree.
SPEAKER_01Yes, this is a fascinating carve out.
SPEAKER_00What happens when someone fully knows that human society thinks an act is illegal, but they believe God personally ordered them to do it.
SPEAKER_01We see this explored in the chilling Washington case, State v. Turgeon. Christopher Turgen ran an extremist religious cult called the Gatekeepers. He believed God was sending him direct specific messages to exact physical judgment on sinners.
SPEAKER_00Okay.
SPEAKER_01A former member of the cult, Dan Jess, left the group and publicly called Turgeon a false prophet. Turgeon claimed God explicitly told him Dan must be killed. So Turjan and his accomplice drove from California to Washington, tracked down Jess, and shot him to death.
SPEAKER_00And at trial Turgeon claimed insanity based on the Didific decree exception.
SPEAKER_01Yes. Washington State allows a narrow exception where if a mental defect causes a genuine delusion that God commanded the act, it destroys the cognitive ability to tell right from wrong. The logic is that if you believe the creator of the universe is commanding you, you're answering to the ultimate perceived moral authority which overrides any earthly loss.
SPEAKER_00But here's the procedural detail that blew my mind when reading the source material. Turgeon and his accomplice before the murder systematically wiped their fingerprints off the shell casings they used. Ah yes and when I read that I zeroed right in on it. So the philosophical paradox here is that if you are truly operating under a divine omnipotent command and your mind is completely detached from earthly reality, why would you try to hide your tracks from the local police? Doesn't the cover up essentially prove your earthly sanity?
SPEAKER_01That is exactly the prosecution's argument and it is precisely why the Deficit decree is so incredibly hard to successfully claim in court. Wiping the fingerprints demonstrates conclusively that Turgeon knew the act was illegal under the laws of man and that he wanted to avoid human punishment. No. The court rule that an otherwise rational defendant who commits a murder is not legally insane if the command did not completely overcome his cognitive ability to tell right from wrong. They also made a fascinating psychological distinction.
SPEAKER_00What was that?
SPEAKER_01They noted that Turgeon wasn't insane in the traditional biological sense. He was a rational actor operating under a radical self-created religious ideology, not a biological mental disease.
SPEAKER_00Wow, okay. So insanity operates like an all or nothing switch. You're either legally sane or legally insane. But human psychology as we know isn't binary like that.
SPEAKER_01No, it's very messy.
SPEAKER_00What happens when a defendant's mind is definitely impaired but doesn't quite cross that extreme threshold into full legal insanity.
SPEAKER_01That is where we enter the incredibly controversial territory of diminished capacity.
SPEAKER_00So if I'm understanding diminished capacity it's not a get out of jail free card like insanity. It sounds more like a strategic legal tactic to downgrade a charge. Is that accurate?
SPEAKER_01You've hit the nail on the head. Diminished capacity is not an affirmative defense that gets you a not guilty verdict. It's a strategy used strictly to negate the specific intent required for a particular severe crime.
SPEAKER_00Can you give an example?
SPEAKER_01Sure. First degree murder requires premeditation and a specific formulated intent to kill. If a defendant has severe brain damage and medically cannot formulate complex long-term plans their attorney might argue diminished capacity to drop the charge from first degree murder down to second degree murder or manslaughter.
SPEAKER_00Oh I see.
SPEAKER_01They're still punished they still go to prison but for a lesser general intent crime that more accurately reflects their mental capability.
SPEAKER_00So it's like a dimmer switch. Insanity is an on-off switch for liability but diminished capacity allows the jury to slide the liability down a notch based on the reality of mental impairment.
SPEAKER_01Exactly.
SPEAKER_00Let's look at the Michigan case People v Carpenter which really tests this dimmer switch.
SPEAKER_01This case is a perfect example of how aggressively courts push back against that dimmer switch. Carpenter went to the home of his ex-girlfriend Audrey Thomas he crashed through a window, fired a gun hit a man who was there and then engaged in a tense standoff with a SWAT team where he was screaming wildly about demons and voodoo dolls.
SPEAKER_00And the medical evidence introduced at trial backed up that he was deeply biologically unwell.
SPEAKER_01Heavily backed it up. Kingswood Hospital reported he was severely delusional, believed special forces were constantly guarding him, heard voices and critically suffered from documented organic brain damage that had been exacerbated by alcohol and drug use.
SPEAKER_00So real physical damage.
SPEAKER_01Yes. His defense psychologist testified that this structural brain damage meant he literally could not formulate the specific intent required to commit the charge of assault with intent to murder.
SPEAKER_00But the Michigan Supreme Court entirely rejected the diminished capacity defense. They wouldn't allow it. Why?
SPEAKER_01Because the Michigan legislature had created a comprehensive statutory scheme that included a specific verdict of guilty but mentally ill. The court reasoned that by creating that specific framework, the legislature intended to preclude any other use of mental capacity evidence short of full legal insanity.
SPEAKER_00So they basically said you get this one option, take it or leave it.
SPEAKER_01They essentially said the legislature gave us an all or nothing system with a specific carve-out for mental illness at sentencing. We aren't going to recognize blurry judicial gradations of culpability. The dimmer switch is illegal in Michigan.
SPEAKER_00I have to push back on the logic of the Carpenter ruling. If we legally ban the dimmer switch aren't we punishing someone with documented physical organic brain damage exactly the same as a cold-blooded calculating mafia hitman who plans a murder for weeks? Yes. How does that serve the fundamental idea of justice if we completely ignore the biological reality of the defendant's brain?
SPEAKER_01It's a profound critique and it is exactly why states are wildly split on this issue across the country. Some states fully embrace diminished capacity arguing that justice demands we look at the individual. Some, like West Virginia, allow it only to negate very specific elements of a crime. And the ones that ban it the states that ban it, like Michigan, do so out of a deep systemic skepticism of psychiatric testimony in the courtroom. They argue that the subtle gradations of mental illness recognized by modern psychiatry are of little utility in the blunt instrument of determining criminal responsibility.
SPEAKER_00They're scared of it.
SPEAKER_01They fear that allowing the dimmer switch will confuse juries, lead to battles of competing expert witnesses, and allow dangerous people to manipulate the system for lighter sentences.
SPEAKER_00Though it is worth noting that the model penal code which is you know a massive legal text written by scholars to guide state laws does offer a kind of compromise here, right?
SPEAKER_01Yes. The model penal code attempts to find a middle ground. It allows for a murder charge to be reduced to manslaughter if the defendant acted under extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
SPEAKER_00Okay.
SPEAKER_01But again that focuses on the reasonableness of the disturbance from the viewpoint of a hypothetical person in the defendant's shoes rather than diving deeply into the specific neurological wiring or brain damage of the defendant.
SPEAKER_00Which brings us to the end of our stack of sources today. We've traced the legal lines from the external physical pressures of natural disasters in the necessity defense to the terrifying human coercion in duress. And then we moved inward, navigating the complex labyrinths of the mind with competency, the historical evolution of insanity and the highly debated dimmer switch of diminished capacity.
SPEAKER_01And what we see across all these doctrines from the United Rule of 1843 to Calor vans in 2020 is a legal system that is obsessed with the why behind our actions but simultaneously terrified of it. The courts are forced to draw rigid, sometimes highly uncomfortable lines based on public policy, the fear of legal loopholes and the shifting societal definitions of morality.
SPEAKER_00It all comes back to that X-ray machine we talked about at the very beginning. Right now, the law's x-ray for the human mind is blurry. It relies on juries guessing at intent, competing psychologists debating definitions and rigid legal tests written centuries ago.
SPEAKER_01But the science is not standing still. The law might be slow, but neurology is racing forward.
SPEAKER_00Exactly. And that leaves us with a final provocative thought to mull over as neuroscience rapidly advances, as we gain the ability to use functional MRI scans to literally map the biological dimmer switches in a specific defendant's brain, showing exactly how trauma, genetics or a tumor impaired their decision making in real time, will these centuries old legal tests of right and wrong or the choice of evils survive?
SPEAKER_01It's a huge question.
SPEAKER_00When we can point to a jagged white line on a brain scan that conclusively proves a lack of impulse control, will we eventually have to completely rewrite the entire criminal justice system to account for biological predestination? Or will we stubbornly cling to the illusion of total free will because the alternative is just too terrifying to govern.
SPEAKER_01It is undeniably the next great frontier of criminal law.
SPEAKER_00Thank you for joining us on this deep dive keep questioning the lines between law, morality and the human mind