Affirmative Defenses

Question 1

What is the main difference between Necessity/Duress and Self-defense?

Answer 1

they all avoid harm but only self-defense involves the use of force against the perpetrator

Self-defense requires immediacy of the threat to get to a jury but necessity and duress do not always (CL duress requires imminence) (we want to constrain the use of force against another person more)

Question 2

Which is broader necessity or Duress?

Answer 2

Duress is broader than necessity because it allows an excuse even if the D did not pick the lesser of two evils

ON THE OTHER HAND

Necessity is broader than duress because the source of the harm doesn’t have to come from a person and doesn’t have to be intentional

Question 3

Are necessity and duress excuses or justifications?

Answer 3

Duress=Excuse

Necessity=Justification

Question 4

What are the 4 parts of the necessity justification

Answer 4

1) D is without blame in occasioning the situation
2) D reasonably believed
3) The act was necessary
4) to avoid public/private injury greater than the injury caused

Question 5

Is imminence required for a necessity defense?

Answer 5

no, but it must be necessary to avoiding the harm (not just conducive to avoiding it)

Question 6

What is the difference in the common law and MPC versions of necessity defense?

Answer 6

Under CL: The harm sought to be avoided actually has to be less than the actual harm caused
Under MPC: The harm sought to be avoided has to be less than the harm sought to be prevented by the law broken

Question 7

Do courts recognize economic need as a harm to be avoided?

Answer 7

No - this would undercut property rights

Question 8

Is there a necessity defense to homicide?

Answer 8

No under CL

Yes under MPC if the # of lives saved is greater than the # of lives lost

Question 9

What are the 4 Common law duress requirements?

Answer 9

1) D was without blame in creating the situation
2) was coerced by threat of death or serious bodily injury
3) which is present imminent and pending
4) of a nature as to induce reasonable apprehension
(NOT available if D picked the greater of 2 evils)

Question 10

What are the 3 MPC duress requirements?

Answer 10

1) D was without blame in creating the situation
2) was coerced by force or threat of force against his person or the person of another
3) that a person of reasonable firms would have been unable to resist
(still available if D did picked the greater of 2 evils)

Question 11

What is the difference in medical illness, insanity, and incompetence?

Answer 11

medical illness= a term for the purposes of treatment which is broader than insanity and incomptence
Insanity=a legal term immunizing from legal liability that refers to mental state at the time of the crime
Incompetence=a legal term referring to mental state at the time of the legal proceeding

Question 12

Is insanity an excuse or a justification?

Answer 12

Excuse

Question 13

What is unique about the insanity defense?

Answer 13

It totally hinges on the state of mind of a particular defendant

Question 14

What is the standard for civil confinement?

Answer 14

must be found to be a danger to the community by clear and convincing evidence

Question 15

Are juries instructed about the consequences of a NG verdict for an insane defendant?

Answer 15

No - they are not instructed that the defendant will likely undergo civil confinement

Question 16

What is the insanity standard for M’Naughten’s case?

Answer 16

To establish a defense of insanity, it must be clearly proven that at the time of the act, the defendant was laboring under such a defect of reason from a disease of mind as to not know the nature of his act or to know it was wrong

Question 17

What is the state v Davis standard for insanity?

Answer 17

It is the same as the M’Naughten standard except inability to control the conduct is also a route to insanity

Did not lower the bar all the way to substantial capacity, ti required plain inability

Question 18

What is the MPC standard for insanity?

Answer 18

A person is not responsible for criminal conduct if at the time of the conduct as a result of a mental defect/disease he lacks substantial capacity EITHER TO appreciate the criminality (wrongfulness) of his conduct (cognitive test) OR to conform his conduct to the requirements of the law (volitional test)

Question 19

What did US v Lyon’s change about the insanity defense under the MPC in that jurisdiction?

Answer 19

It removed the volitional prong because the evidence is too uncertain and it would just be the speculation of experts driving the outcome

Question 20

Who has the burden of proof to prove insanity?

Answer 20

Majority: Defendant must prove insanity by preponderance of the evidence
Minority: Defendant must make a colorable case of insanity and then the burden shifts to the prosecution