Class 8: Necessity, Duress, Intoxication, Insanity.

Question 1

Is US necessity a justification or an excuse?

What about CAN neccessity?

Answer 1

A justification

In CAN criminal it is an excuse.

Question 2

Is necessity something that arises from natural sources or from people?

Answer 2

Its where natural sources compel a person to choose between the lesser of evils

Question 3

What are the seven elements of American necessity?

What are the 3 elements of CAN necessity?

Answer 3

1) The violation of law must produce a lesser evil

2) The danger to be avoided must be imminent or immediate

3) The actor cannot be responsible for creating the necessity

4) there must be no other reasonable lawful alternative

5) the actor must reasonably believe that breaking the law will avoid the impending harm

6) the actors criminally must cease after the threat has been evaded

7) the defence is not permitted if it would defeat a legislative purpose

CAN Necessity
1) Imminent threat
2) No legal alternative
3) Proportionality

Question 4

Out of the seven elements, what is the core of neccessity?

Answer 4

The first. You are breaking the law because if you don’t, the harm that will happen will be worse.

Question 5

United States v Ridner

Facts: He was concerned that his brother was going to kill himself. So, when the brother returned to the porch, his brother took bullets from him. After police show up looking for brother who tried to protect the other. It is a federal crime to possess ammunition, and thus he was charged.

Issue: Brother claims necessity.

1) What are the seven components of necessity?

2) Is necessity an excuse or justification?

3) Out of the 7 components of necessity, which two can you claim he broke?

Answer 5

Holding:

Necessity
1) The violation of law must produce a lesser evil

2) The danger to be avoided must be imminent or immediate

3) The actor cannot be responsible for creating the necessity

4) there must be no other reasonable lawful alternative

5) the actor must reasonably believe that breaking the law will avoid the impending harm

6) the actors criminally must cease after the threat has been evaded

7) the defence is not permitted if it would defeat a legislative purpose

2) A justification.

3) Court goes over the 7 factors. They cannot claim necessity as they fail two elements.

1) the danger to be avoided must be imminent, and it was not imminent. The risk was there by not so ready to happen.

2) You can only engage in the conduct as long as necessary. Once threat is evaded, you must stop. In this case, you got rid of the bullets and you should have gotten rid of them.

Question 6

Common law and MPC: Which allows the defence of necessity for murder?

For CAN criminal, can you claim necessity for murder?

Answer 6

At common law, they do not allow it.

The MPC allows necessity for murder.

Technically yes but hasn’t been done before.

Question 7

Queen v Dudley and Stephens

Facts: Three men and a 17-year-old were swept out to sea in a boat. Forced to survive on very little food. When 8 days without food and water. On the 20th day, they were dangerously weak. The three men decided they needed to sacrifice someone. They ate the 17-year-old.

Issue: Can they claim necessity for the murder?

1) Assume common law applies, can they claim necceissty for murder?

2) Same as 1) but assume MPC applies.

Answer 7

Holding: Court rejects their claim.

This sets precedent that you cannot claim necessity for a murder charge at common law.

Using MPC, they could claim necessity for murder.

Question 8

United States v Bailey
Facts: Prisoner escapes from prison and claims there were life threatening situations and they had to leave for their safety. After they did leave, they never came back to prison.

Issue: Can they claim necessity?

1) Remembering the seven factors for necessity, which one would apply here? Would they be able to use this defence?

Answer 8

Holding: Court said even if they had no alternative, that they had to escape from the prison, there is no evidence they surrendered themselves after they escaped.

To claim necessity, your criminality must stop once you claim it. In this case after they escaped, they must have turned themselves in after and they didn’t.

Thus, no necessity.

Question 9

Hypothetical:

A kills B and claims necessity in court and the court agrees. C is an accomplice to the killing.

Can C claim necessity based on A’s necessity claim?

Answer 9

Yes.

Since necessity is a justification, and transforms a wrongful act into a rightful act, it should apply to accomplices who assist the principal.

If indeed the defendant is justified, those who helped should not be guilty of accomplices as they facilitated a rightful act.

Question 10

Macintosh Case

Facts: He landed a helicopter in prison yard to break out his girlfriend. She claims her escape was justified by necessity. Macintosh wants the necessity to extend to him.

Issue: Can he claim necessity as an accomplice?

Answer 10

Yes.

Holding: Court agreed that Macintosh can tie his fate to his girlfriend, and if necessity works for her then as an accomplice, it works for him.

Question 11

What is civil disobedience in regards to necessity?

Whats the typical example?

Answer 11

Civil disobedience is where you know you are breaking the law but had to break it due to necessity to meet political objectives.

This usually applies to protestors, who claim they had to violate the law.

Question 12

What are the two types of civil disobedience?

Which can be a defence and which usually cannot be a defence?

Answer 12

Direct civil disobedience is a protestor protesting the law she is breaking.

Indirect civil disobedience is a protestor protesting a law but violates a different law in order to make the protest effective.

Direct is a defence for necessity but indirect is not a defence.

Question 13

United States v Schoon

Facts: 30 people who engaged in a protest at the IRS office. They were protesting the US involvement in Mexico. They caused damage to the building.

Issue: They claimed necessity.

1) Explain the two types of civil disobedience necessities.

2) Assume the court held it was indirect. Result?

3) Assume the court held it was direct. Result?

4) Applying the tests to these facts, would the court claim it was direct or indirect?

Answer 13

Holding:

Direct civil disobedience is violating the law that is the subject of the protest.

Indirect civil disobedience is a violation of some other law, as a way of protesting something else.

Direct civil disobedience CAN be a defence,

Indirect civil disobedience CANNOT be a defence.

Court held this was a case of indirect disobedience and thus no necessity claim.

Question 14

Is duress a excuse or justification?

What about CAN duress?

Answer 14

Both are excuses

Both are excuses

Question 15

What is the defence of duress under the common law?

Does this usually occur from natural forces or by a person?

Answer 15

Under the common law, duress was a defense. It arises when a person commits a crime because they were threatened or coerced into doing so by someone else.

Not by natural forces, but by some other person.

Question 16

Hypothetical:

If someone says rob the bank or ill stab you, is this neccessity or duress?

Answer 16

Durress.

Question 17

What is the three part test for duress in US?

What is five part test for duress in CAN?

Answer 17

A person can claim duress if

1) They or a third party faced an imminent threat from which there was no reasonable means of escape

2) the threat was so severe that a reasonable person could not resist it and thus she had no choice

3) the actor was not blameworthy in creating the circumstances that led to the threat.

Criteria that must be met for defence of duress to be successful:

1. There must be an explicit or implicit threat of present or future death or bodily harm — this threat can be directed at the accused or a third party;
2. The accused must reasonably believe that the threat will be carried out; evaluated on a modified objective standard of the reasonable person similarly situated
3. There must be no safe avenue of escape; evaluated on a modified objective standard;
4. There must be a close temporal connection between the threat and the harm threatened; (modified objective test). This requirement in no way precludes the availability of the defence for cases where the threat is of future harm.
5. There must be proportionality between the harm threatened and the harm inflicted by the accused; also evaluated on a modified objective standard .

Question 18

MPC and Common law: Can you claim duress as a defence for murder?

Answer 18

Under the MPC you can

Under common law you cannot.

Question 19

United States v Contento-Pachon

Facts: CP was a cab driver. One of his passengers asked him if he would swallow cocaine balloons to smuggle. He said no and the guy said we investigated your house, and we will kill your wife and child. CP agreed to smuggle the drugs due to the threat. CP goes to the airport with the balloons, he consented to have his stomach x-rayed, and the cops found out.

Issue: Can he claim duress?

1) Explain the three part test.

2) Apply the three part test and explain what you think the verdict this is.

Answer 19

Holding: Court said yes.

1) They or a third party faced an imminent threat from which there was no reasonable means of escape

2) the threat was so severe that a reasonable person could not resist it and thus she had no choice

3) the actor was not blameworthy in creating the circumstances that led to the threat.

• There was imminent threat to his kids
• So severe he had no choice
• He was not blameworthy.

Thus he can claim duress.

Question 20

Commonwealth v DeMarco

Facts: Not stated

Issue: Not stated

1) What is the specific wording they used for the second part of the duress claim?

Answer 20

Holding:

Under their duress statute, the unlawful force does not need to be present, but must be impending.

The question is “would a person of reasonable firmness be able to resist the threat” If they cannot, it is duress.

Question 21

DURESS SUMMARY BY PROFESSOR:

Freebie, to help summarize.

Answer 21

Look for those thing

Escapability: can they reasonably escape.

Look for the severity of the threat : Would a reasonable person be able to resist it

Look for fault: was the defendant at fault for subjecting himself to the threat:

If not, you have a case of duress.

Question 22

Intoxication: What are the two types of intoxications?

Answer 22

Voluntary intoxication and involuntary intoxication

Question 23

Is voluntary intoxication usually a defence?

At common law, can it ever be a defence?

Answer 23

Not usually.

Voluntary intoxication can be a defense at common law if it negates the mens rea of a specific intent crime.

Not general intent crimes.

Question 24

Hypothetical:

You steal from someone, but you did so when intoxicated. Larceny is a specific intent crime.

You argue I was so drunk; I could not form the specific intent to steal.

Can he claim voluntary intoxication?

Answer 24

Yes.

Under this common law exception, that defendant would have a defense.

Question 25

Does the MPC distinguish between specific and general intent crimes?

Answer 25

No. they do not.

Question 26

Using the MPC can you use intoxication for both general and specific intent crimes?

What about at common law?

What about CAN intoxication?

Answer 26

Yes. They do not recognize specific or general intent crime differences.

At common law, no only specific intent.

For CAN intoxication, you can claim extreme intoxication for general and specific, and advanced for specific only.

Question 27

Is involuntary intoxication generally a defence?

What about under MPC or common law?

Answer 27

Yes it is.

Doesn’t matter, it s a defence in both.

Question 28

R v Eagle Hoff

Facts: Defendant tried to claim voluntary intoxication but was not permitted to do so. The act says Voluntary intoxication MAY NOT be taken into consideration when a criminal offence.

Issue: Is this a violation of the constitution?

1) Is the fact that the state did not allow the intoxication claim a violation of the due process of the US constitution?

Answer 28

Holding: SCC rejected this.

They upheld the constitutionality of the act.

The justice said the state still bears the burden. All the act did was make it a little easier. They didn’t get rid of it all.

Question 29

What level of intoxication is needed to claim a defence of voluntary intoxication?

What can it defend and what it cannot defend?

Answer 29

Extreme to where you negate your mental state.

It can define a specific intent crime but not a general intent crime.

Question 30

State v Brown

Facts: Brown was attending a gathering. He was extremely intoxicated. He met his ex-wife’s boyfriend. Later when he saw them kissing, he entered the room and killed the boyfriend. The state requirement needed subjective knowledge.

Issue: Can he claim intoxication as a defence?

1) Was his intoxication relevant to see if he had the subjective knowledge needed?

2) Can you claim voluntary intoxication for a general intent crime?

Answer 30

Holding:

The supreme court said that Browns extreme intoxication was relevant to see if he had the required subjective knowledge.

He claims he was so intoxicated he cannot have been subjectively aware of the risk he was taking.

2) Cannot claim for a general intent crime.

Question 31

1) Is self induced intoxication generally a defence?

2) If it can be a defence, what can it be a defence for specifically?

3) Does due process require this to be an offence?

4) How does the MPC change this?

Answer 31

Summary: Generally self-induced intoxication not a defence.

Some jurisdictions it can be a defense for a specific intent crime. If so, must be so extreme it would negate your ability to have mens rea.

Due process does not require that defense.

MPC allows this for specific or general intent crimes.

Question 32

People v Garcia

Facts: Garcia hit his wife with a hammer and then ran her over. He claims he was in a state of hypoglycemia.

Issue:

1) Can hypoglycaemia count as involuntary intoxication?

Answer 32

Holding:

Court held yes, he can. “Involuntary intoxication by way of insulin induced hypoglycemia may constitute the affirmative defense of involuntary intoxication.

Question 33

Kodikian Case

Facts: Two young men set off on a hiking trip. They were not prepared for the heat, and they got lost. Both men suffered from dehydration. Kodikian claimed that his friend begged to be killed and he did kill him.

Issue: He claimed involuntary intoxication based on acute dehydration.

1) Can lack of water be used as a involuntary intoxication claim?

Answer 33

Holding:

Judge denied this. In part because he never ingested a substance, but rather he failed to ingest a substance.

Question 34

What is insanity in the legal context? What time is important to consider?

Answer 34

Insanity is whether a person should be excluded for their criminality based on their mental state at the time of the crime.

Question 35

What is the difference between mental illness and insanity?

Answer 35

Mental illness and insanity are not the same thing. Mental illness is a medical concept, insanity is a legal concept.

You can be mentally il without being insane.

Question 36

Does having a mental illness make you insane?

Answer 36

No.

Question 37

Is insanity an affirmative defence?

(What does an affirmative defence mean?)

Answer 37

It is an affirmative defense, so the defense must prove it.

Question 38

What is the cognition test for insanity (mcnaughten test) It has two factors.

Do you need both?

Is this on an objective or subjective scale for second part?

Is there an exception?

What is the CAN test?

Answer 38

Two Prongs; Defendant at the time of the offence was labouring under mental disease or defect such that

1) She did not know the nature and quality of her actions (cognitive incapacity)

OR

2) She did not know the difference between right and wrong (moral incapacity)

Based on an objective scale.

Dee if it decrees is an exception to the moral incapacity objective scale and uses a subjective scale.

Question 39

For insanity, what is the difference between “knowledge’ and “appreciate”?

Answer 39

Knowledge is surface level knowledge not deeper level.

Appreciate is a deeper level understanding.

Question 40

For insanity, what is the Irresistible Impulse Test?

Is this for MPC or common law? What are the two tests?

How does it affect the McNaughten test?

Answer 40

It expands on the McNaughten test.

MPC is the substantial capacity standard. This is for common law.

Establishes insanity if the defendant meets M’Naughten test OR they suffer from an irresistible impulse that makes them unable to control their behaviour.

Question 41

What is the MPC test for insanity?

What does it mean?

Is this test more lenient for insanity or rigid compared to McNaughten?

Answer 41

This is the MPC test. It is a hybrid between irresistible impulse test and McNaughten test.

A person has a defence of insanity if at the time of the defence… the defendant lacks the substantial capacity to appreciate the criminality of her conduct or conform her conduct

Substantial capacity is the big part: the other ones are very rigid you’re either insane or you’re not. Here, all it requires is substantial capacity. Not as rigid.

Uses the appreciate language instead of know.

Question 42

State v Crenshaw

Facts: not relevant.
Issue:

1) For insanity, is it an objective or subjective outlook?

Answer 42

Holding:

Court concludes it is an objective test. Whether society would view them as wrongful.

Not whether the defendant personally believes his actions to be rightful.

Question 43

What is the exception to a objective outlook for insanity defences?

What is the exception?

What happens if the jury believes them?

Answer 43

Exception to Objective v Subjective Test

Dee if it decrees. Idea that the person is doing what they are doing because god has instructed them to do it. This person believes this.

This forms an exception to the general rule of the objective test for right or wrong under the McNaughten test.

This involves the idea that God told them to kill. Allows defendant to claim insanity and use it if god commanded them to use it.

The jury can disbelieve this, obviously. But if the jury believes the testimony, that the defendant really subjectively believes that god did this, then the jury could acquit them.

Question 44

Kahler v Kansas
Facts: Irrelevant
Issue:

1) Is it a violation of due process if you do not allow proof of moral incapacity as a defence of insanity?

Answer 44

Holding:

No.

SCC said it is not a violation of due process if you get rid of insanity defenses. Due process does not make a state adopt a law that requires moral incapity and this is not a violation.

Question 45

What is the alternative to pleading insanity if you cannot meet this standard? (similar to the lower offence idea in CAN insanity)

What does it mean?

Answer 45

Diminished capacity.

If the defendants mental capacity is such that she could not form the requisite mens rea, the offence is downgraded.

Question 46

Is “insanity” a psychiatric term?

What about for CAN insanity?

Answer 46

No it is a legal conclusion that a defendant is not criminally responsible.

It is a legal term.

Question 47

Is the insanity defense constitutionally required?

Answer 47

Although virtually every state recognizes the insanity defense in some form, it does not appear to be required by the federal Constitution.