Statutory Bars on Intoxication Evidence

Statutory Bars on Intoxication Evidence

Section 2.08(1) of the Model Penal Code gives voluntary intoxication one limited route into a criminal trial: the evidence matters when it negatives an element of the offense, which means an element that describes a state of mind.¹ That rule is a middle position. Treating drunkenness as a general excuse would let the condition itself cancel responsibility, a result the early common law rejected so firmly that intoxication was once treated as an aggravating factor.² Section 2.08(1) instead admits the evidence for a single purpose, testing whether the prosecution has proved a required mental state, and it does not otherwise excuse what the defendant did while intoxicated. Some legislatures decline to allow even that limited use and bar voluntary intoxication from the mental-state inquiry altogether.

Montana and Arizona show how an exclusion statute is built. Montana's provides that an intoxicated person remains criminally responsible and that the intoxication may not be taken into consideration in deciding whether a mental state required by the offense existed, while Arizona's declares that voluntary intoxication is not a defense to any criminal act or required mental state.³ The practical effect is that the jury decides whether the defendant acted purposely or knowingly without hearing that drinking may have prevented it. Under § 2.08(1) the evidence grows more powerful as the impairment grows more severe, because heavier drinking makes a missing purpose more plausible, so an exclusion statute removes the benefit at the point where it would have been largest. These statutes are also an old device, since by the early twentieth century a number of state legislatures had already restricted the use of voluntary intoxication evidence.⁴ Montana's version keeps a narrow exception for a defendant who proves that the substance was not known to be intoxicating, which anticipates the line between voluntary and involuntary intoxication drawn later in this chapter.⁵

The contrast isolates a single variable, the rule governing admissibility, because the offense, the drinking, and the proffered evidence are identical in both settings. An intoxication problem therefore begins with a question the earlier sections could treat as settled, whether the jurisdiction bars the evidence at all, since the element-by-element analysis operates only where the evidence may be considered. The remaining question is constitutional. Evidence of intoxication bears on a mental state the State must prove, so a defendant can argue that barring it relieves the State of part of its burden. That argument persuaded the Montana Supreme Court, which held the statute invalid under the Due Process Clause.⁸ The United States Supreme Court reversed in Montana v. Egelhoff and held that the Montana statute does not violate due process.⁹ The next subsection takes up the statutes themselves, and the one after it turns to the reasoning of Egelhoff.

States That Exclude the Evidence

Section 2.08(1) leaves one route open for self-induced intoxication: the evidence may be offered to show that an element describing a state of mind was never formed.¹⁰ An exclusion statute closes that route by controlling what the jury may weigh when it decides whether the required mental state existed. Montana's statute shows the technique in its fullest form, providing that an intoxicated person "is criminally responsible for the person's conduct," that an intoxicated condition "is not a defense to any offense," and that the condition "may not be taken into consideration in determining the existence of a mental state that is an element of the offense."¹¹ The statute has three working parts, and each answers a different way a defendant might use the drinking.

The first two clauses close the excuse route, so a defendant cannot argue that drunkenness relieves responsibility for the conduct. The third clause closes the route that § 2.08(1) leaves open. The statute needs that clause because a ban phrased only as no defense would leave room to argue that the evidence is offered to show the prosecution's proof of purpose or knowledge falls short, and that argument is a challenge to the prosecution's case and not an affirmative excuse. With the third clause in place, the prosecution must still prove the mental-state element, but the jury weighs it on the remaining evidence, such as what the defendant did and said and how the events unfolded, without hearing that drinking may have prevented the mental state from forming.¹²

Arizona reaches the same result with different wording. Its statute provides that temporary intoxication resulting from the voluntary ingestion, consumption, inhalation, or injection of alcohol, an illegal substance, other psychoactive substances, or the abuse of prescribed medications "does not constitute insanity and is not a defense for any criminal act or requisite state of mind."¹³ The statute's reference to a requisite state of mind does the work of Montana's no-consideration clause, because it forecloses using intoxication to argue that a required mental state was missing. The word voluntary confines the bar to substances the person chose to take, a limit that becomes important when this chapter reaches involuntary intoxication. Arizona's insanity statute closes the neighboring door as well, since it provides that mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs.¹⁴

The reason a legislature adopts such a statute lies in the choice it faces about how to treat people who commit crimes while impaired. A legislature concerned with the high incidence of crime committed by people under the influence of alcohol or drugs may conclude that voluntary intoxication should not lower culpability, and Montana v. Egelhoff, the decision taken up next, explains that such a legislature need not take the sweeping step of dispensing with mens rea whenever the actor is impaired.¹⁵ It can instead keep the mental-state element and define it so that voluntary intoxication has no exculpatory relevance.¹⁶ An incentive reason supports the design as well. Under § 2.08(1) the claim gets stronger as the drinking gets heavier, so the rule hands its best argument to the person who consumed the most, and excluding the evidence removes any chance that heavier consumption will buy a stronger defense. The premise that makes this drafting available is that the reasonable-doubt requirement applies to an offense as the State defines it, a point the Court noted in Patterson v. New York.¹⁷ Whether a particular definition goes too far under the Due Process Clause is the question Egelhoff answers, so this section stays with the statutes themselves.

Montana's statute contains one narrow exception, and it shows what the bar is aimed at. The bar lifts if the defendant proves that he did not know the substance was an intoxicating one when he consumed it.¹⁸ Because the statute speaks of what the defendant proves, the burden of establishing the exception rests on the defendant. The exception follows from the justification for the bar: an intoxicated defendant is treated like a sober one because the impairment came from a chosen act, and a person who does not know the substance intoxicates has made no such choice. That reasoning anticipates the line between voluntary and involuntary intoxication drawn later in this chapter.

The two defendants differ in one fact, whether the person knew the substance was intoxicating, and that fact moves the evidence from excluded to admissible. The degree of impairment is the same in both. Arizona draws the same line through the word voluntary in its text, and not through an express exception.

Exclusion statutes come in different widths, and the variations matter on an exam. Pennsylvania narrows without abolishing: its statute makes voluntary intoxication no defense and bars evidence of it to negative intent, yet lets the defendant offer the evidence whenever it is relevant to reduce murder from a higher degree to a lower one.²⁰ Montana's statute goes further and removes intoxication as a basis for acquittal altogether.²¹ A bar of that kind applies whatever the offense, so the specific-intent and general-intent label that decides admissibility at common law does no work in such a jurisdiction.²² Texas follows a different pattern. Voluntary intoxication is not a defense there, but a defendant may offer evidence of temporary insanity caused by voluntary intoxication to mitigate punishment.²³ In Texas the evidence therefore bears on how severely the defendant is punished and not on whether an element of the offense was proved.

Students lose points here by analyzing whether drinking negatived purpose before reading the jurisdiction's statute. The element-negation analysis operates only where the evidence may be considered, so the statute comes first, and a high blood-alcohol reading in a Montana or Arizona problem points to the bar and not to a defense.

The Egelhoff Decision

The exclusion statutes described above raise a constitutional question, because a defendant who cannot show that drinking prevented purpose or knowledge can argue that the State has been spared part of its burden. The Supreme Court answered that question in Montana v. Egelhoff. Egelhoff made friends with two other mushroom pickers while camping in northwestern Montana, and in July 1992 the three sold their mushrooms and spent the rest of the day and evening drinking in bars and at a private party, a binge that apparently continued after they left in a station wagon.²⁵ Around midnight officers found the wagon in a ditch, with both companions dead from single gunshot wounds to the head and Egelhoff in the rear seat, where a blood-alcohol test more than an hour later registered .36 percent; his handgun lay on the floor near the brake pedal, and gunshot residue was on his hands.²⁶ The homicide charge required the State to prove that he acted purposely or knowingly, and the Montana Supreme Court held that applying the statute's bar on intoxication evidence to that element was unconstitutional, because the bar prevented the defense from rebutting a mental state the State had to prove.²⁷ The United States Supreme Court disagreed and held that the statute does not offend the Constitution.²⁸

The Due Process Clause protects principles of justice so rooted in the traditions and conscience of the people that they rank as fundamental, so the question was whether a defendant's right to have the jury weigh voluntary intoxication on a mental-state element belongs in that category.²⁹ Justice Scalia's lead opinion, speaking for four Justices, answered no on two grounds, one drawn from history and one drawn from the states' control over the definition of crimes.³⁰ The dissent disagreed with the result, and the clash between the two positions is the most useful way to learn what the case holds.

The historical argument begins with how long the old rule lasted. From the sixteenth century until the nineteenth, the common law refused to treat voluntary drunkenness as an excuse, and a federal judge in 1820 went so far as to say that drunkenness, far from excusing murder, aggravates its malignity.³¹ The lead opinion insisted that this rule reached mental state as well as excuse. Hale, Coke, and Blackstone understood mens rea and acknowledged that drunkenness deprives people of the use of reason, so they could not have overlooked the possibility that a drunken offender might be unable to form the intent a crime required, and the rule they stated must therefore mean that a drunken offender is judged as though sober.³² The sixteenth-century case of Reniger v. Fogossa shows the logic: a drunk who kills is hanged for felony even though he acted through ignorance, because that ignorance came from his own act and folly and he could have avoided it.³³ The law treated a self-inflicted loss of understanding as no ground for relief, since the actor chose the step that destroyed his own judgment.

The obstacle to this argument is the nineteenth-century change examined earlier in this chapter, and the lead opinion met it by stressing how unevenly the change took hold. The exception allowing a jury to consider intoxication on a specific intent is often traced to an 1819 English ruling about whether a killing was premeditated or done in sudden heat, yet a judge in 1835 said that ruling was not law, and as late as 1858 the Missouri Supreme Court insisted on adhering to the older common-law rule.³⁴ The dissent accepted that the shift occurred, explaining that courts came to see a mental-state requirement as incompatible with refusing evidence that could defeat it.³⁵ The two sides therefore disagreed about what the shift proves. In the lead opinion's view, rejecting the old rule in the nineteenth century does not show that the new rule is rooted deeply enough to rank as fundamental, particularly when the common law was still in flux at the time the Fourteenth Amendment was ratified.³⁶ The Court's survey of the law on assisting suicide in Washington v. Glucksberg follows a similar historical method, though that decision concerns a different right and forms no part of the intoxication doctrine.³⁷

The second ground concerns who defines the elements of criminal responsibility. That task generally belongs to the states,³⁸ and as the Court observed in Patterson v. New York, the reach of the reasonable-doubt requirement has always depended on how a state defines the offense charged.³⁹ A legislature that wants voluntarily intoxicated defendants treated like sober ones therefore has two drafting choices. It can abandon the mental-state requirement whenever the actor is impaired, in effect equating voluntary intoxication with purpose or knowledge, or it can keep the requirement and define the culpable mental state so that voluntary intoxication has no exculpatory relevance.⁴⁰ An opinion supporting the judgment found it unsurprising that states took the narrower course, and it cited a Hawaii decision approving a legislature's power to redefine the mental-state element and exclude intoxication evidence on it.⁴¹ On that view the mental-state element still binds the State, but intoxication simply does not bear on it, so excluding the evidence takes nothing away from the prosecution's burden.

The dissent supplies the strongest counter-argument. Purpose or knowledge is an element of the offense, and unless the State proves it beyond a reasonable doubt the defendant did not commit the crime.⁴² Because intoxication can bear on whether that element exists, nineteenth-century courts admitted it to show that the crime was never committed, a function separate from excusing or mitigating a crime that was.⁴³ Removing that category of evidence therefore does two things at once: it keeps the defendant from effectively rebutting the mental-state element, and it shields the State from having to prove that element in the face of evidence that would have negated it.⁴⁴ The Montana Supreme Court found this damage to the adversarial process decisive.⁴⁵ Justice Breyer added a practical point, that a jury kept unaware of the intoxication would likely infer knowledge or purpose from the conduct alone.⁴⁶

Justice O'Connor's dissent also denied that history can settle the matter. To decide whether a principle is fundamental, she argued, the Court must consider not only the historical disallowance of intoxication evidence but also the principle that a defendant has a fair opportunity to put forward a defense, in adversarial testing where the State must prove the elements beyond a reasonable doubt.⁴⁷ That principle has a familiar source, since Washington v. Texas described the right to present a defense as a fundamental element of due process, so that the jury hears the defendant's version of the facts along with the prosecution's.⁴⁸ The reply was that history is what shows what society has understood a fair opportunity to include, and the opportunity has demonstrably never included a right to introduce intoxication evidence.⁴⁹ The reply accepts the fair-opportunity principle and relies on history to supply its content, which locates the real disagreement in what the principle contains. The objection also resembles one made in Patterson, where a dissent called the Court's reliance on the state's definition of the offense formalistic and warned that it lets a legislature shift the burden of persuasion through careful drafting.⁵⁰ Because the dissent did not carry the Court, the judgment stands: the Due Process Clause does not prohibit a state from excluding voluntary intoxication evidence on mental state.⁵¹

Because the judgment sustains a statute, its scope is easy to misread. It holds that a state may exclude voluntary intoxication evidence from the mental-state inquiry without violating due process.⁵² It does not hold that a state must exclude the evidence, so a state that follows § 2.08(1) may keep admitting self-induced intoxication whenever it negatives an element, and nothing in the decision forbids that choice.⁵³ The decision sets the constitutional limit on what a defendant may demand, and the actual rule on intoxication evidence in a given jurisdiction still comes from that jurisdiction's statute or common law.

Students most often err by reading the decision as announcing a rule of exclusion. An answer that says voluntary intoxication is never relevant to mental state after the decision is wrong, and so is an answer that treats § 2.08(1) as unconstitutional. The holding is that exclusion is permissible, not required, so a sound answer starts with the jurisdiction's own rule and turns to the constitutional point only when a defendant challenges a bar on the evidence.