Criminal Law Defense Flashcards
NICE MICE EVADE WASPS
Necessity
Infancy
Claim of right
Excessively broad penal state
Mistake of law or fact
Insanity
CUB status as a fence to felony murder
EDD
Entrapment
Vague
Bill of Attainder
Duress
Ex Post Facto
Withdrawal (renunciation)
Alibi
Self Defense
heat of Passion
Statute of Limitations
Affirmative Defenses and their burden of proof
All Affirmative defenses that a D must prove by a preponderance of the evidence, except CIA which are ordinary defenses (failure of proof defense)
C: Claim of Right
I: Infancy (D must be under 7 or under 18)
A: Alibi
Claim of Right
Asserted by a defendant charged with a theft crime, who had an honest subjective good faith mistaken belief, that the property he is accused of stealing was his own, or he had a right to take it.
Minority does not apply this defense to crimes of robbery or burglary for public policy reasons
Infancy
At common law, infancy was a complete defense for an infant under 7 because it was the belief that infants under the age of 7 lacked the mental capacity to form intent.
Requires: proof beyond a reasonable doubt and is entitled to counsel, Miranda warnings, the right to confrontation, and 4th A protections, but is not constitutionally entitled to a jury trial in the Juvi court because of its rehabilitative goals
Alibi
A defendant charged as principal first degree or as an aider or abettor can claim alibi, simply by asserting that she was somewhere other than at the crime scene when the crime occurred. An alibi may raise reasonable doubt as to whether the D committed the crime.
in almost every state timely notice must be given to P of alibi witnesses which affords the state an opportunity to investigate. P must also serve a list of alibi witnesses
Self-Defense
D charged with a crime of violence but who claims his act was justified in response to an unlawful attack or a threat of attack upon the defendant (or 3rd).
J permits the use of force that is otherwise criminal but which, under the circumstances, was reasonable and legal to prevent the IMMEDIATE, UNLAWFUL force or conduct of another
- Did not use more force than necessary
- Was not the first aggressor
Deadly force is justified if the D reasonably believed he was in imminent danger of serious injury or death
Minority: Duty to retreat, except if BIG P
1. D reasonably believed deadly force was necessary to prevent or terminate a homicide or BRAKERS felony or
- D was inside his dwelling and not INITIAL aggressor
- D is threatened with a GUN
- Police officer
Some states: Stand your ground applies to public areas and dwelling if D reasonably believes, even mistakenly, he was in imminent danger
Duress
A defendant acts under duress when he acts criminally, through no fault of his own, out of reasonable fear of immediate death or serious injury to himself or a third person.
D forced to commit crime out of fear must show:
- he did not INTENTIONALLY or RECKLESSLY place himself in a situation in which it was probable that he would be forced to choose criminal conduct, AND
- He had no reasonable alternative but to break the law; no reasonably opportunity to ESCAPE or to seek assistance and protection from the police.
CANNOT BE RAISED IN MOST JURISDICTIONS FOR AN INTENTIONAL MURDER OR ITS ATTEMPT
IS A DEFENSE TO OTHER FIGS MAN HOMICIDES
Withdrawal (renunciation)
When the D has accomplices, the D must effectively ANNOUNCE his withdrawal to all accomplices in time for them to effectively abandon the crime.
Majority: withdrawal is not available for the anticipatory crimes of solicitation, conspiracy (overt act required), or attempt (substantial step required), but it is a defense for any post-withdrawal crimes committed by other accomplices.
Minority and MPC: allows renunciation of the anticipatory crimes (SAC: solicitation, attempt, conspiracy), but the D must actually “thwart” the success of the substantive crime.
Insanity
A D is not responsible for crimes solicited while insane. .
A D is presumed to be sane and the D has the burden of proving his insanity by a preponderance of the evidence. However, state are free to raise the burden to clear and convincing or to even abolish the insanity defense.
M’NAGHTEN TEST
M’NAGHTEN TEST
Majority:
To establish an insanity defense, under M test the D must prove not just that he was mentally ill, but that he LACKED THE TOTAL CAPACITY (or substantial capacity in minority) to know;
at the time of committing the criminal act–the defendant’s state of mind caused them to
(1) not know what they were doing when they committed said act, or
(2) that they knew what they were doing, but did not know that it was wrong.
i. e., unable to understand that his actions were legally or morally wrong.
States differ on the definition of “wrong”
- some states, it is not a defense the D did not know it was legally wrong because everyone is presumed to know the law
- minority: ALI test (only requires D to prove that b/c of his mental disease. ALI test
American Law Institute Test
To prove insanity under the more liberal ALI test, D must show that because of his mental disease, he:
- lacked the substantial capacity to APPRECIATE the wrongfulness conduct OR
- the D was unable to conform his conduct to the law.
If D can show that his mental disease prevented him from controlling his conduct, the ALI test is satisfied even if D knew conduct was wrong.
EDD and HOP
Minority: EED
Majority: HOP
Arise from a temporary state of mind which so enraged, inflamed, and disturbed the D that it overcame his judgment, and caused him to act uncontrollably from extreme provocation.
Must show:
- A subjective showing that D ACTUALLY lost self-control, (contrived or a sham not sufficient)– planned or deliberate attack or escape is inconsistent with EED or HOP; AND
- an objective determination of the reasonableness of the D’s explanation for losing self-control and whether external factors would have caused a reasonably PRUDENT person to lose self-control under the circumstances as the D PERCEIVED them to be.
HOP: NO COOLING OFF PERIOD PERMITTED.
EED: need not be spontaneous but rather requires D to demonstrate his mind was OVERWHELMED by an emotional disturbance which inexplicably surfaced at the time.
Entrapment
- government induced to commit a crime, and
- D’s lack of predisposition to engage in that conduct.
Arises when law enforcement unfairly:
- originates the criminal idea;
- proposes it to a D;
- actively encourages the crime’s commission
- the D, if left alone, would not have committed the crime
D has the burden of proving by a preponderance of evidence that the government’s conduct of encouraging the D to commit the crime created a SUBSTANTIAL RISK that a crime would be committed by a person not OTHERWISE INCLINED TO COMMIT A CRIME (objective standard)
Gov may prove predisposition by demonstrating:
- D’s prior similar criminal conduct
- willingness to commit the crime as evidenced by the defendant’s quick acceptance (second or minutes) of the criminal offer; or
- preexisting intent by the D to commit the crime
The Rule for Use of Non-Deadly Force
A D may use non-deadly force in self-defense if he:
- Reasonably believes such force is necessary
- to protect against an immediate threat of unlawful harm
- against him or a 3rd
Rule for Use of Deadly Force
D may use deadly force in self-defense, if he reasonably believes he is facing imminent threat of death or serious bodily injury
