5. Miscellaneous Defenses

Question 1

Necessity

Answer 1

♣ Valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society

Objective standard: D’s commission of the crime must be reasonably necessary; good faith alone is insufficient

Exceptions:
o 1. Crime committed results in the death of another or
o 2. D caused the events giving rise to the necessity

Question 2

Duress

Answer 2

Defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family

Exception: duress is not a defense to homicide crimes

Question 3

Consent

Answer 3

♣ Consent of victims is generally not a defense, but may be available if it negates an element of the offense

Never available for certain offenses (e.g. statutory rape)

Requirements:
o 1. Consent was voluntarily and freely given
o 2. Party was legally capable of consenting and
o 3. No fraud was involved in obtaining consent

Question 4

Entrapment

Answer 4

An available defense to criminal liability if a law enforcement agent has induced D to commit a crime.

Requirements:
♣ 1. Criminal design originated with law enforcement
♣ 2. D was not otherwise predisposed to commit the crime

Law enforcement providing an opportunity for a person to commit a crime is not by itself entrapment.

Question 5

Mistake of Law

Answer 5

♣ Almost never a defense

♣ Lacking awareness or knowledge that an act constitutes a crime even if reasonable is not a defense to that crime

♣ Exception:
• Reasonable reliance on an invalid statute
• Mistake or ignorance negates an element of a crime requiring knowledge of the law

Question 6

Mistake of Fact

Answer 6

♣ Available as a defense only if it negates a requisite intent element (e.g. mens rea) for the crime