Criminal Defenses

Question 1

What is lack of intent?

Answer 1

Stated or demonstrated lack of intent (obviously if believed by trier of fact)

Question 2

Is an involuntary act a defense?

Answer 2

Yes, generally, unless you know about your condition and act recklessly. Also, drug addiction not a defense.

Question 3

Is mistake of law a defense?

Answer 3

A mistake of law can be used to defeat the element of intent. If have a reasonable or unreasonable belief about the law, and that means you could not have the intent, complete defense. However, ignorance of the law is not a defense. If you intended the act, but didn’t know it was illegal, still guilty. Also, can assert MOL defense if a) relied on law later repealed or struck down by a court decision; or b) opinion of an AG or public official charged with interpreting the law BUT NOT a private lawyer. If statute spec req knowledge of law, and you don’t have that knowledge, however unreasonable that is, defense.

Question 4

Is mistake of fact a defense

Answer 4

Yes, a reasonable mistake can be a defense to a general intent crime. Even an unreasonable mistake can be a defense to a specific intent crime. MOF not a defense to a SL crime.

Question 5

Is factual impossibility a defense?

Answer 5

Generally, impossibility is not a defense. This is especially true with attempt crimes because D still has the specific intent to commit the illegal act. However, look to whether it negates element of intent in specific intent crime.

Question 6

Is intoxication and defense?

Answer 6

Involuntary intoxication is a defense, if D. is very drunk. Voluntary intoxication not a defense to a general intent crime, meaning all the prosecutor has to show is intent to do the act; negligence/recklessness; strict liability crimes; crimes where intox is element. May be a defense to a specific intent crime, where G hs to show the D intended a specific result.

Question 7

What are the tests for insanity need to know?

Answer 7

M’Naghten; Irresistible impulse test; Durham; ALI/MPC

Question 8

What is the M’Naghten Rule?

Answer 8

Cognitive test. Disease of mind; caused defect of reason; bc of defect, defendant lacked the ability at the time of his actions to either know the wrongfulness of actions or to understand the nature and quality of actions, or if understood nature and quality, to understand they were wrong. If fact pattern says that D knew actions were wrong, this test doesn’t apply.

Question 9

What is the Irresitible impulse test?

Answer 9

Mental disease; MD made D unable to control his action or to conform his conduct to law. ie., D lacks power to distinguish right from rwong.

Question 10

What is the Durham test?

Answer 10

Actions product of mental disease; crime would not have happened absent (but for) MD.

Question 11

What is the ALI/MPC test?

Answer 11

Combines M’Naghten with Irresistible Impulse test. MD results in lack of substantial capacity to appreciate criminality of conduct or conform conduct to the requirements of law.

Question 12

What is difference between competency and insanity?

Answer 12

Competency goes to D’s ability to stand trial – basically to assist in defense, understand charges. Insanity goes to “intent” time of crime.

Question 13

What is self defense?

Answer 13

Complete defense if D is without fault and has a reasonable belief that he is in imminent danger of unlawful bodily harm. May use amount of force necessary to prevent unlawful bodily harm.

Question 14

When can deadly force be used in self defense?

Answer 14

To prevent serious bodily harm. Non serious bodily harm does not warrant use of DF.

Question 15

Is there duty to retreat?

Answer 15

No duty to retreat in the face of non-deadly force; re deadly force, MOST jurisdictions do not require retreat, and in those that do, no duty if can’t do so safely; no duty to retreat from one’s home or place of business.

Question 16

Re self defense, what rights does aggressor have?

Answer 16

Regains right of self defense if aggressor withdraws and victim knows it or if the victim escalates the degree of force originally used by aggressor

Question 17

When is defense of others a viable defense?

Answer 17

This is the right to defend a third party against an aggressor by using force. In some jurisdictions, there must be a special relationship between the defender and the victim (parent child; spouses). Reasonable force is key.

Question 18

What are the rules re defense of property?

Answer 18

Available where person reasonably believes defending property from theft, destruction or trespass; no greater force than is necessary; usually non deadly force, unless associated with defense of self or others, accompanied by threat of deadly force, or entry to home by one intending to commit felony.

Question 19

What is duress?

Answer 19

The compelling of a person to undertake an action against his or her will by the threat of physical or economic harm by a third person. Actual threat of immediate harm against a person, where person has no opportunity to avoid the harm by non-criminal method, and D did not intentionally put himself in position where duress was foreseeable. NOT AVAILABLE AS DEFENSE OT MURDER BUT MIGHT MITIGATE.

Question 20

Repentence or forgiveness dfense?

Answer 20

No. Crime is against community too.

Question 21

What is imperfect self defense?

Answer 21

If the amount of force D uses in self defense is not reasonable (excessive force), this doctrine may apply to reduce or mitigate intent (malice) and reduce the crime for murder to manslaughter. In a sense it is a partial defense that can result in mitigation.