Affirmative Defenses

Question 1

What are Affirmative Defenses?

Answer 1

A. They explain that even if a person did it, they should not be held liable

2 Types:
1. Justification
2. Excuses

Question 2

1. Justification

Answer 2

*D claims that he was justified in committing the crime.

2 types:
1. Self-Defense/ Defense of others
2. Necessity

Question 3

Self-Defense/ Defense of others:

Answer 3

A. D may use physical force upon another when he reasonably believes it is necessary to defend himself or a 3rd person the use of unlawful physical force by other person.
B. D cannot be the primary aggressor

2 Types of self-defense:
1. Non-Deadly Force
2. Deadly Force (Can be used only if D reasonable believes that the other person will cause death or serious bodily harm)

*Duty to retreat: D cannot assert the defense if there is an opportunity to retreat

*Castle Doctrine (Some States) : No duty to retreat and can use deadly force without waiting to see if the perpetrator will threaten serious bodily injury.

Question 4

Necessity

Answer 4

Elements:
1. An emergency arose without D’s fault
2. The emergency caused an imminent threat with a reasonable expectation of harm
3. The emergency did not present a reasonable opportunity to avoid the injury without doing the criminal act; and
4. The injury that was about to happenmust be so sufficient to outweigh the criminal wrong.

Question 5

2. Excuses

Answer 5

we may choose to excuse the person from criminal liability if we think the mental illness was severe enoughr he acted involuntarily under duress

2 Types:
1. Duress
2. Insanity

Question 6

1. Duress

Answer 6

Elements: (1) A specific person threaten D or a 3rd party with death or great bodily injury ; and D reasonably believed that the commission of the offense was the only way to avoid that harm.

*Difference between necessity and Duress is what actually caused the emergency:

Question 7

2. Insanity

Answer 7

Common law says even if you’re insane, you are still guilty.

1. M’Naughten/ Right or Wrong test :
   * A person is capable of understanding the nature and quality of her action is not necessarily capable of appreciating the wrongfulness of the conduct
2. irresistible Impulse Test
   *D must show that he was unable to choose between right and wrong or unable to conform his conduct to the requirements of the law, that he was unable to control his own conduct.
3. MPC/ Sliding Scale.
   *Sliding scale if A then total defense and if B then partial defense. Combined both the cognitive inquiry of M’Naghten and the volitional inquiry of irresistible impulse but broadened both.