Defenses

Question 1

What is the majority approach to insanity?

Answer 1

the M’Naughten Test (purely cognitive):
D must prove EITHER
1. he didn’t know his conduct was wrong, or
2. he didn’t understand the nature of his conduct.

Question 2

What is the irresistible impulse test?

Answer 2

It is a purely volitional test.
D must prove EITHER
1. he was unable to control his actions, or
2. he was unable to conform his conduct with the law.

Question 3

What is the MPC test?

Answer 3

Blend of cognitive and volitional:
D lacked substantial capacity to EITHER
1. appreciate the criminality of his conduct, or
2. conform his conduct to the requirements of the law.

Question 4

How is insanity defined in NY?

Answer 4

D lacked substantial capacity to know or appreciate EITHER

1. the nature and consequences of his conduct, or
2. that his conduct was wrong.

Question 5

What is the difference between insanity and incompetence to stand trial?

Answer 5

D was insane at the time of the crime.
D is incompetent to stand trial when at the time of the trial he can’t either understand the nature of the proceedings or assist his lawyer in preparation for the defense.

Question 6

When is voluntary intoxication a defense under common law?

Answer 6

To specific intent crimes ONLY.

It requires “sever prostration of the faculties” - i.e. must be extremely drunk so as to defeat specific intent.

Question 7

When is voluntary intoxication a defense in NY?

Answer 7

Can be a defense to intent and knowledge crime - if the intoxication prevents D from forming the requisite mens rea. Never a defense to negligence, recklessness, or strict liability crimes.

Question 8

What is the common law “Rule of 7s” for infancy as a defense?

Answer 8

D is under 7: prosecution not allowed against him.
D is under 14: rebuttable presumption against prosecution.
D is over 14: prosecution is allowed against him.

Question 9

What are the infancy rules for defenses in NY?

Answer 9

D is under 13: can’t be prosecuted as an adult
D is 13: prosecution as an adult for murder 2 only
D is 14-15: prosecution as adult for serious crimes only
D is over 16: prosecution as adult for any crime allowed.

Question 10

When is a mistake of fact a defense to criminal liability under common law?

Answer 10

Reasonable mistake of fact: to any crime that is not strict liability.

Unreasonable mistake of fact: only to specific intent crimes.

Question 11

When is a mistake of fact a defense to criminal liability in NY?

Answer 11

If the mistake negates the mental state.

Any mistake can negate intent, knowledge, or recklessness.

Only reasonable mistakes can negate negligence.

Question 12

When is a mistake of law a defense in NY or common law?

Answer 12

Not a defense, unless knowledge of the law is an element of the crime.

Question 13

What is the general rule for when deadly force may be used?

Answer 13

When it is reasonably necessary to protect yourself or another person against an immediate use of unlawful deadly force or serious bodily injury.

Never for the defense of property alone.

Question 14

Can an initial aggressor use deadly force?

Answer 14

No - unless he either withdraws from the fight and communicates that to the victim, or the victim suddenly escalates a non-deadly fight into a deadly one.

The sudden escalation rule does not apply in NY.

Question 15

What is the duty to retreat in the majority of states?

Answer 15

There is none. You do not have to retreat even if you can.

Question 16

Does NY impose a duty to retreat?

Answer 16

Yes. A person is required to retreat rather than use deadly force unless:

• can’t retreat in complete safety, or
• D is in his home

Police officers also have no duty to retreat.

Question 17

Can a person still claim self-defense if they made a mistake as to the need for self-defense?

Answer 17

If the mistake was reasonable - they can still claim self-defense.

If the mistake was unreasonable:
NY (majority): cannot claim self-defense
Minority (MPC): imperfect self-defnse rule - unreasonable mistake mitigates but does not exonerate defendant.

Question 18

How much force can be used to prevent a crime?

Answer 18

Non-deadly: if reasonably necessary to prevent a serious breach of the peace.

Deadly: only to prevent a felony risking human life.

Question 19

When can an individual use force against the police?

Answer 19

Majority rule: if the arrest is unlawful, D may use non-deadly force to resist arrest.

NY: force may not be used to resist arrest - even if the arrest is unlawful. Force can be used against an officer who is using excessive force.

Question 20

When may police officers use deadly force?

Answer 20

When it is “reasonable under the circumstances.”

• reasonable in a high speed car chase to force the car to crash (resulting in death)
• unreasonable when no probable cause to believe the fleeing burglar was armed.

Question 21

What is the necessity defense?

Answer 21

It is a complete defense to criminal conduct if D reasonably believed it was necessary to prevent a greater harm to society.

But not if D caused the death or another to protect property or D is at fault for creating the choice-of-evils situation.

Question 22

When is duress a defense to criminal liability?

Answer 22

If D was coerced to commit a crime because of a threat from another person of imminent death or serious bodily injury to himself or a close family member.

Not a defense to homicide (it is a defense to homicide in NY).

Question 23

When can a defendant claim entrapment as a defense to criminal liability?

Answer 23

When the criminal design originated with the government AND defendant was not “predisposed” to commit the crime (e.g. clean criminal record).