Legal defences

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be provided for you.

You don't need to have watched many TV crime shows to be familiar with these words, known as the "Miranda warning," which U.S. police tell suspects before they question them about crimes. It's so familiar, in fact, that it has infiltrated the English language to become a noun, adjective and verb (as in "Has the suspect been Mirandized?")

In jurisprudence, Miranda comes under the category of an "innovative defence," which includes legal defence tactics — usually for murder charges — such as sleepwalking, Stockholm Syndrome (a hostage's affinity for his/her captor), spousal abuse, temporary insanity, diminished capacity.

The so-called Twinkie defence stems from a double murder trial in San Francisco in 1979. A psychiatrist testified that the accused had been severely depressed, in no small part because he had been consuming Twinkies and Coca-Cola. The defence argued that diet can worsen existing mood swings, resulting in diminished capacity.(Hostess/Associated Press)

It's even applied to junk food: the famous case in which a man who had killed two city officials in San Francisco used what came to be known as the "Twinkie defence" and was convicted of the lesser charge of voluntary manslaughter instead of first-degree murder.

The original Miranda case involved an Arizona man named Ernesto Miranda, who was arrested in 1963 for kidnapping, rape and armed robbery. He confessed to the crimes during police questioning without being told of his constitutional right to remain silent. Miranda was convicted, but the U.S. Supreme Court overturned the conviction on the basis that he did not understand his right not to incriminate himself or his right to counsel. Miranda later was convicted in a new trial, with new witnesses and new evidence. He served 11 years in prison.

In Canada, the equivalent to Miranda exists in accordance with the Charter of Rights and Freedoms, which says an arrested person has the right:

1. To be informed promptly of the reasons for the arrest.
2. To retain and instruct counsel without delay and be informed of that right.
3. To have the validity of the detention determined by way of habeas corpus (which requires authorities to bring a detained person to court for a ruling on whether they can legally keep the person in custody) and to be released if the detention is not lawful.

Twinkie defence

The Twinkie defence stems from the double murder trial in 1979 of Dan White in San Francisco. White — a former supervisor on the city's governing council, the San Francisco Board of Supervisors — killed Mayor George Moscone and Supervisor Harvey Milk on Nov. 27, 1978.

At the trial, psychiatrist Martin Blinder testified that White was severely depressed, in no small part because he had been consuming Twinkies and Coca-Cola, arguing that diet can worsen existing mood swings, resulting in diminished capacity. The jury bought it and deemed White incapable of the premeditation required for a murder conviction and he was convicted of voluntary manslaughter. White served five years in prison.

Over the years, several rock bands and TV sitcoms have had fun with the Twinkie defence and in November 1996, the three-act opera Harvey Milk — composed by Stewart Wallace and librettist Michael Korie — made its San Francisco debut.

Chewbacca defence

Doubtless because of all the spin-off fun of the Twinkie Defence, the gang on the animated TV series South Park had a fine time in one episode with the "Chewbacca defence."

The law and innovative defences

The point of the defence is essentially to confuse a jury with bafflegab and red herrings, as the South Park writers suggested attorney Johnnie Cochran did in his closing argument defending O.J. Simpson in his murder trial.

In the episode, the character Chef is battling a record company, saying a hit song is actually one he composed decades earlier. In the closing arguments in court, the record company's lawyer suddenly begins rambling about the Star Wars character Chewbacca and the imaginary planet on which he lived, concluding with: "If Chewbacca lives on Endor, you must acquit!"

Sleepwalking defence

In 1992, the Supreme Court of Canada upheld the acquittal of Kenneth Parks, who said he was sleepwalking when he drove 23 kilometres, stabbed his mother-in-law to death and seriously injured his father-in-law.

Parks was a 23-year-old Toronto man with a wife and infant daughter. He suffered from severe insomnia, the result of joblessness and gambling debts. He turned himself in to police after the deed, saying "I think I have killed some people.…"

At his trial, Parks said he could not remember anything about the murder and assault. A team of defence experts — psychiatrists, a psychologist, a neurologist and a sleep specialist — testified that Parks was "asleep" during the attack and therefore unaware of his actions.

On May 25, 1988, the jury rendered a verdict of not guilty on both the first-degree murder and attempted murder charges. The government appealed the decision and the top court upheld the acquittals.

Battered person defence

Because this defence invariably is invoked by women, it usually is referred to in court as "battered woman syndrome" or "battered wife syndrome," though technically it is not gender-specific. The term "battered woman syndrome" was coined by American feminist and psychologist Lenore Walker in the late 1970s.

In Canada — as in the United States, Britain, Australia and New Zealand — the courts agree that battered partners can use force to defend themselves and even kill their abusers in abusive, life-threatening situations in which they find themselves acting in the belief there is no other way for self-preservation.

The courts make a distinction between the newer battered woman defence and the ancient principle of self-defence.

In Canada, on Oct. 4, 1995, Justice Minister Allan Rock commissioned a review by an Ontario judge, Lynn Ratushny, of the law of self-defence as applied in 98 cases involving battered women.

The resulting review recommended that three of the women be granted free pardons (granted in recognition that the conviction was in error) on the ground that "no reasonable jury would convict her in the face of the evidence before me."

Also as a result of the review, the Royal Prerogative of Mercy — where the government acknowledges the crime but can reduce or waive the sentence — was invoked for four of the women who had killed their abusers.