the imbroglio

Today we got a good overview of MT Crimlaw—at least from the perspective of a 30-year prosecutor. But I learned a lot about how MT law differs from federal or MPC or common law—both substantively and procedurally. Examples of those differences after the jump…¹

Differences between MT criminal law and procedure and the rules I’ve learned elsewhere:

Under federal law, you can be convicted of conspiracy to do X and X. In MT, you can’t be convicted for both; both can go to the jury and jury will decide which to find you guilty of (if either).

Voluntary intoxication is never a defense in MT, not even to specific intent crimes. The only time intoxication is a defense is if D proves he did not know the substance he ingested was intoxicating. (I assume there’s still the possibility of involuntary intoxication as a defense if you were physically forced to become intoxicated, but MT would probably call that a defense of compulsion, not involuntary intoxication.)

MT has purportedly abolished the insanity defense.² The state used to use the M’Naghten test, but now it uses a sort of modified Durham test —D is entitled to acquittal if he suffered from a mental disease or defect and, as a result, he could not act purposely or knowingly.³

“Recklessly” is not a level of criminal intent in MT.

MT has no crime of “battery.” Assaults can include actual physical injury, not just apprehension of it.

MT does have a hate crimes statute that protects race, religion, and national origin, but not sexual orientation.

MT retains laws against sexual intercourse or sexual contact between persons of the same sex, despite the fact that the state supreme court has said that these laws are unconstitutional as applied to consenting adults.

Burglary in MT does not require a breaking—you’re guilty if you enter or or remain unlawfully in an “occupied structure” (which doesn’t have to be occupied) with the purpose to commit an offense therein. (Burglary required at least a “breaking” to enter at common law and that remains true in many jurisdictions.)

For felony murder in MT the underlying felony need not be independent from the homicide, as is required in many other jurisdictions. So if a felony assault ends in death, that can be felony murder.

Montana has not adopted the Hodari D. standard for when a seizure occurs. Under Hodari D., if the police tell you to “Halt!” and you keep running, you are not seized until you actually submit to that authority. State v. Clayton, 2002 MT 67 (although that version is unreadable for me). So does this mean that if the police say “Halt!”—that’s a seizure whether you stop or not?

MT has added to the Illinois v. Gates “totality of the circumstances” test for establishing probable cause based on a tip from an informant. You still look at the totality, but also ask three specific questions about the reliability of the informant. State v. Reeseman, 301 Mont. 408 (2000). So the test is more focused on the reliability of the informant than on the reliability of the information.

MT does not recognized the “good faith exception” as a defense to a an invalid warrant. Federal law gives cops who execute a warrant the benefit of the doubt—if they rely in good faith on a warrant that was somehow flawed (e.g. it listed the wrong address or something), their illegal search will be excused and evidence discovered in that search can be admitted against the defendant. Not true in MT. If the warrant is not valid, the search is not valid. Period.

Also, MT does not recognize the automobile exception to the warrant requirement.

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That’s not everything, but those are the big ones I noticed. Some are good from the perspective of a public defender (the procedural ones, esp.), some are not so good. Who knows? Maybe the state’s new public defender system can have a positive effect on those bad laws by bringing more and more effective challenges to them in the near future. [tags]crimlaw, barbri[/tags]

1. No need to bore those of you who really could care less about the details of MT criminal law, which I’m guessing is about 99.9% of the people who will see this post.↩
2. This came in response to John Hinckley’s successful use of the defense after he shot Ronald Reagan. I wonder if the MT legislature would have felt the need to make the change if Hinckley had shot President Carter, instead.↩
3. Prosecutor-lecturer could not suppress her glee when she added that (and I’m paraphrasing) “The jury doesn’t get instructed that a finding of mental disease sends the D to a mental hospital indefinitely; they think the person will get to go free and be walking around the street!” So obviously juries who are so uninformed would be reluctant to find a person not guilty by reason of mental disease or defect, huh? Oh, and one more thing: According to prosecutor-lecturer, if a person is clearly crazy but also very scary, courts generally just “let that go,” meaning, they don’t worry about the mental problems and just send the person to prison. Now that’s what I call justice.↩