Affirmative Defenses/Partial Defenses

Question 1

Justification

Answer 1

The defendant’s conduct was not legally or morally wrong because society sees a justification or a reason for the action
- self-defense and necessity

Question 2

Excuse

Answer 2

The defendant does not deserve to be punished because the defendant themselves was not capable of controlling their actions or their behavior
- duress, insanity, provocation (partial excuse)

Question 3

Self-Defense General Rule

Answer 3

State case law and legislation may follow some or all of each - always look at the statute, use common law to inform you interpretation unless it appears to adopt language of MPC

Question 4

Self-Defense CL [justification affirmative defense]

Answer 4

Requirements . . .
1. threat of unlawful force
2. imminent danger of death or bodily harm (NORMAN)
3. responsive force was necessary and proportionate
- used to avoid death, serious bodily harm, kidnapping, or sexual intercourse
4. necessity belief was HONEST and REASONABLE
- subjective (WANROW) and objective standard (GOETZ)

Question 5

Things that can bar a self-defense claim in CL

Answer 5

1) aggressors/provocateurs [in the moment] CANNOT use self-defense UNLESS they explicitly call of hostilities, even if the victim has increased the amount of responsive force
- some states forget that provocateurs count as aggressors
- although words are normally not enough for provocation, there have been some cases in which severe language was sufficient

2) failure to retreat
- NO possibility of safely retreating
- being at home [castle doctrine] and a Stand Your Ground Law are the exceptions
(PETERSON)

Question 6

Self-Defense MPC [justification affirmative defense]

Answer 6

Requirements . . .
1. threat of unlawful force
2. immediately necessary to protect oneself (NORMAN)
3. responsive force was necessary and proportionate
- used to avoid death, serious bodily harm, kidnapping, or sexual intercourse
4. necessity belief was HONEST
- subjective standard (WANROW)

Question 7

Things that can bar a self-defense claim in MPC

Answer 7

1) aggressors [in the moment] may use self-defense if their victim responds to their non-deadly force with deadly force - idea is that at the point the force being used against them is “unlawful” because it is excessive
* Exception: if the aggressor comes to the scene intending to cause death they may NOT respond with lethal force regardless of the responders actions

2) Failure to retreat
- NO possibility of safely retreating
- being at home or work is the exception
(PETERSON)

Question 8

Necessity CL [justification affirmative defense]

Answer 8

Requirements . . .
- NEVER a defense to murder! (DUDLEY)
- objective standard based on what was reasonably foreseeable to the defendant at the time
- naturally caused
1. act must have been done to prevent significant imminent evil (NELSON/UNGER)
2. no adequate alternative (HASKELL)
3. harm caused must not have been disproportionate to harm avoided

jurisdictional split
- in some jurisdictions harm avoided must be greater than harm causes

Question 9

Necessity MPC [justification affirmative defense]

Answer 9

Requirements . . .
- NEVER a defense to murder! (DUDLEY)
- naturally caused
1. act done to prevent greater harm (NELSON and UNGER)
- measured objectively
2. subjective belief conduct was necessary to avoid harm (UNGER again)

Question 10

Things that can bar a necessity in MPC

Answer 10

1) there is a legislative intent to exclude

2) defendant was reckless/negligent in brining about the situation

Question 11

Duress CL [excuse affirmative defense]

Answer 11

Requirements . . .
- NEVER a defense to murder! (ANDERSON)
- human caused
- involuntary
- complete defense
1. immediate threat [from another person] of death or serious bodily injury (CONTENTO-PACHON)
2. reasonable fear that the thereat will be carried out
3. no reasonable opportunity to escape

Question 12

Duress MPC [excuse affirmative defense]

Answer 12

Requirements . . .
- NEVER a defense to murder! (ANDERSON)
- human caused
- involuntary
- complete defense
- objective standard
1. MUST be coerced by the use of, or threat to use, unlawful force “against his person or the person of another”
2. MUST have been force a “person of reasonable firmness” would have been unable to resist

Question 13

Things that can bar a duress claim in MPC

Answer 13

1) defendant was reckless/negligent in brining about the situation

Question 14

Intoxication checklist for an essay

Answer 14

Claim that defendant’s mental state was impaired by intoxication, which prevented them from forming the necessary mens rea to break the law
1. Involuntary or voluntary?
2. Level of intent required by the offense? - specific or general intent
3. Specific circumstances of the case?

Question 15

Voluntary Intoxication CL [excuse affirmative defense for specific intent crimes]

Answer 15

General Intent: NOT a defense

Specific Intent: can be a defense if defendant shows that being intoxicated prevented the formation of a higher level of intent required for the offense (VEACH)
- however, some states do NOT allow this defense at all!

Question 16

Voluntary Intoxication MPC [excuse affirmative defense in certain scenarios]

Answer 16

• no distinction between general and specific intent
• defense is allowed if the intoxication negated an element of the offense and it was not a crime of recklessness or lesser
  – defendant must show that they were TOO intoxication to intend the action

EXCEPTION - mental disease/defect from long-term voluntary intoxication/addiction may form the basis of an insanity defense if the defendant qualifies under the relevant test

Question 17

Involuntary Intoxication CL/MPC [excuse affirmative defense]

Answer 17

May be a defense to all offenses where the defendant can show the impairment negated the requisite mens rea [general and specific]
Categories -
1) coerced
2) pathological
3) innocent
4) unexpected

Question 18

1) coerced intoxication

Answer 18

Someone forced defendant to get intoxicated
* e.g., someone holds you at gunpoint and make you chug vodka

Question 19

2) pathological intoxication

Answer 19

Reaction to a small amount of substance, making defendant way more intoxicated than a normal person would be
* e.g., sensitive to alcohol

Question 20

3) innocent involuntary intoxication

Answer 20

Defendant was unaware of the character of the substance taken
* e.g., friend gives you what they say is a regular brownie but it is actually a pot brownie

Question 21

4) unexpected intoxication

Answer 21

Unexpected reaction to a medically prescribed drug
* e.g., doctor prescribes you a new anxiety medication that unexpectedly makes you super drowsy/loopy

Question 22

Insanity CL [excuse affirmative defense]

Answer 22

1) M’Naghten Rule
- most commonly used
2) Irresistible Impulse Test
3) Product Rule
- burden is on the defense
– insanity defenses declined in popularity post HINCKLEY

Question 23

1) M’Naghten rule

Answer 23

• defendant ONLY needed to be cognitively impaired during the time of the crime
  Defense MUST prove that either . . .
  a) defendant did not know what they were doing
• e.g., you think the person you are killing is a mannequin

b) defendant did not know what they were doing was wrong
* e.g., you believe your killing is justified because that person was a demon
(ANDREA YATES)

Question 24

2) Irresistible Impulse Test

Answer 24

Defendant’s mental illness made them lose self-control and they could not stop themselves
* e.g., you have OCD and feel an overwhelming need to steal a specific item from a store or something terrible will happen

Question 25

3) Products Rule

Answer 25

If the crime happened because of a mental illness, it is not totally the defendants fault
- limited to New Hampshire
* e.g., you have severe schizophrenia and hear voices telling you to set a building on fire

Question 26

Insanity MPC [excuse affirmative defense]

Answer 26

If defendant’s mental illness made them lack substantial capacity either -
a) to appreciate the wrongfulness / criminality of their conduct (WILSON)

b) to conform their conduct to the requirements of the law

• more lenient than CL
• does NOT apply to individuals with personality disorders such as psychopaths

Question 27

Competency

Answer 27

• differs from legal insanity
• is about whether someone is mentally able to stand trial and requires (1) a rational and factual understanding of what is going on and (2) the ability to reasonably communicate with the lawyer/judges (DUSKY)

Question 28

Provocation CL [partial defense]

Answer 28

ELEMENTS . . .
a. adequate provocation [objective]
- categorical approach (GIROUARD)
i. discovering spouse physically cheating
ii. mutual combat
iii. assault/battery
iv. resistance of illegal arrest
v. injury to love one
OR
- Would a reasonable man be so inflamed as to strike out [jury question]?

b. killing in the “heat of passion” [subjective]

c. heat of passion was sudden [objective]
*DOES NOT ALLOW for a “cooling off” period

Question 29

Provocation MPC [partial defense]

Answer 29

Reasonable emotional disturbance
- subjective/objective standard
* allows for a “cooling off” period (CASASSA)