9. Capacity Defenses

Question 1

M’Naghten Test for Insanity

Answer 1

The defendant must prove that he either:

1. did not know that his conduct was wrong, or
2. did not understand the nature of his conduct.

Question 2

MPC Test for Insanity

Answer 2

Defendant must establish that he lacked the substantial capacity to either:

1. appreciate the criminality of his conduct (cognitive option), or
2. conform his conduct to the requirements of law (volitional option).

Question 3

NY Test for Insanity

Answer 3

Defendant must prove he or she lacked substantial capacity to know or appreciate either:

1. the nature and consequences of his conduct, or
2. that his conduct was wrong.

Question 4

A defendant must notify the prosecutor of his intention to raise the insanity defense within _____ days of entering a “not guilty” plea.

Answer 4

30

Question 5

When is Insanity an issue?

Answer 5

The issue is whether the D was insane at the time of the crime. If he was, the D is not guilty by reason of insanity.

Question 6

When is Incapacity an issue?

Answer 6

The issue is whether, at the time of trial, the D cannot either:

1. Understand the nature of the proceedings against him; or
2. Assist his lawyer in the preparation of his defense.

If either is established, trial is postponed until the D regains competency.

Question 7

Common Law approach to voluntary intoxication

Answer 7

1. Can be a defense to intent crimes only.

2. Cannot, therefore, be a defense to malice, general intent, or strict liability crimes.

Question 8

NY approach to voluntary intoxication

Answer 8

Can be a defense to intent crimes and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind.

Cannot be a defense to crimes of recklessness, negligence, or strict liability.

Question 9

Common Law Infancy Defense

Answer 9

(1) If, at the time of crime, the D’s age is less than 7, prosecution is not allowed.
(2) If, at the time of crime, the D’s age is less than 14, there is a rebuttable presumption against prosecution.
(3) If, at the time of crime, the D’s age is 14 or older, prosecution is allowed.

Question 10

NY Infancy Defense

Answer 10

(1) If the defendant is under 13, criminal prosecution as an adult not allowed; only “juvenile delinquency” proceedings in Family Court.
(2) If the defendant is 13, criminal prosecution as an adult allowed for second degree murder.
(3) If the defendant is 14 or 15, criminal prosecution as an adult allowed for serious crimes against persons or property.
(4) If the defendant is 16 or older, criminal prosecution as an adult allowed for any crime.

Question 11

Common law approach to mistake of fact

Answer 11

Whether a defendant’s mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable.

Question 12

What is required for a common law defense of mistake of fact if the mental state for the crime is “specific intent?”

Answer 12

Any mistake of fact (even an unreasonable one) will be a defense.

Question 13

What is required for a common law defense of mistake of fact if the mental state for the crime is “malice” or “general intent?”

Answer 13

Only a reasonable mistake of fact will be a defense.

Question 14

What is required for a common law defense of mistake of fact if the mental state for the crime is “strict liability?”

Answer 14

Mistake of fact will never be a defense.

Question 15

NY approach to mistake of fact

Answer 15

In New York, a mistake of fact will be a defense if the mistake negates the required mental state.

Question 16

When is a mistake of law a defense?

Answer 16

If the statute specifically makes knowledge of the law an element of the crime (e.g., “selling phony Rolex watches knowing it is unlawful to do so”).

Question 17

What does NY call “self defense?”

Answer 17

Justification

Question 18

The Rule for Use of Non-deadly Force:

Answer 18

A defendant may use non-deadly force in self-defense if he

(1) Reasonably believes such force is necessary
(2) to protect against an immediate use
(3) of unlawful force against himself.

Question 19

The Rule for Use of Deadly Force:

Answer 19

Defendant may use deadly force in self-defense, if he reasonably believes he is facing an imminent threat of death or serious bodily harm.

Question 20

The “Initial Aggressor” Rule

Answer 20

A defendant may not use deadly force if he is the initial aggressor – that is, the person who started the fight. But, the initial aggressor can “regain” his right to use deadly force in self-defense if:

1. He withdraws from the fight and communicates that withdrawal to the other person; or
2. The victim suddenly escalates a non-deadly fight into a deadly one.

Question 21

NY distinction to the “Initial Aggressor Rule”

Answer 21

In New York, the initial aggressor must withdraw before using deadly force in self-defense, EVEN IF the other party suddenly escalates a non-deadly fight into a deadly fight.

Question 22

The NY Retreat Rule

Answer 22

Retreat is required, unless:

1. D cannot retreat in complete safety, or
2. D is in his home (the “castle exception”).

Question 23

What happens if D is reasonably mistaken about the need to use unlawful force in self-defense?

Answer 23

Complete defense

Question 24

What happens if D is unreasonably mistaken about the need to use unlawful force in self-defense?

Answer 24

NY: No defense

MPC: Mitigates, but does not exonerate

Question 25

May someone use non-deadly force to prevent a crime?

Answer 25

Non-deadly force may be used, if it is reasonably necessary, to prevent any serious breach of the peace .

Question 26

May someone use deadly force to prevent a crime?

Answer 26

Deadly force may only be used to prevent a felony risking human life.

Question 27

General rule for the use of deadly force to protect property

Answer 27

Deadly force may not be used to defend property.

Question 28

An occupant may use deadly force inside her dwelling when:

Answer 28

1. An intruder has gained entry in a violent manner; AND
2. The occupant reasonably believes that the use of deadly force is necessary to prevent a personal attack on herself or someone else in the dwelling.

Question 29

If the defendant knows or reasonably should know that the person performing the arrest is a police officer… (Majority rule vs. NY rule)

Answer 29

Majority Rule: If the arrest is unlawful, the defendant may use non-deadly force to resist the arresting officer.

NY Rule: Force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force.

Question 30

Use of Deadly Force by Law Enforcement:

Answer 30

An officer may use deadly force only when doing so is reasonable under the circumstances.

Question 31

What does NY call the defense of “Necessity?”

Answer 31

Justification

Question 32

Necessity (NY Justification)

Answer 32

Conduct that is otherwise criminal is justifiable if the defendant reasonably believes that the conduct was necessary to prevent a greater harm.

Question 33

Limitations on Necessity (NY Justification)

Answer 33

The defense is unavailable if:

(1) D causes the death of another person to protect property; or
(2) D is at fault in creating a situation that creates a choice of evils.

Question 34

Duress

Answer 34

If the defendant was coerced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member, his conduct is excused.

Question 35

Common Law Limitation on Duress

Answer 35

Duress cannot be a defense to homicide.

Question 36

NY Law Limitation on Duress

Answer 36

None. Duress is an affirmative defense to all crimes, including homicide.

Question 37

Entrapment

Answer 37

If a defendant believes that the government unfairly tempted him to commit a crime, he may claim entrapment. To prevail on the defense, the defendant must prove that:

1. The criminal design originated with the government, and
2. The defendant was not predisposed to commit the crime.