Defenses

Question 1

What are the four defenses to felony murder?

Answer 1

1. A valid defense to the underlying felony
2. The felony was not an independent felony
3. Death was not a foreseeable result or a natural and probable consequence of the felony
4. Death occured after the commission of the felony and the ensuing flight from the scene of the crime

Question 2

Intoxication Defense

When can a Defendant raise this defense?

Answer 2

A defendant may raise an intoxication defense if the defendant was intoxicated when the crime was committed due to either:

1) Voluntary intoxication – the deliberate ingestion of a substance that the defendant knew or should have known has intoxicating effects is a defense to specific intent crimes only if the intoxication prevented the defendant from forming such intent
2) Involuntary intoxication – the unknowing or forcible ingestion of an intoxicating substance is a defense to any crime if it negates an element of the charged crime or placed the defendant in the same mental state required for an insanity defense

Question 3

When does the initial aggressor gain the right to self-defense?

Answer 3

“An initial aggressor can claim self-defense only if (1) the aggressor’s use of nondeadly force was met with deadly force or (2) the aggressor, in good faith, completely withdrew from the altercation and communicated that fact to the victim.”

Murder is the unlawful killing of another with malice aforethought—e.g., with the intent to inflict serious bodily harm.

However, a murder is justified if it was committed in self-defense. This justification generally does not extend to an initial aggressor—i.e., the person who first uses or threatens physical force.

But an initial aggressor may gain the right to act in self-defense in two circumstances:

1) When the initial aggressor’s use of nondeadly force is met with deadly force OR
2) When the initial aggressor, in good faith, completely withdraws from the altercation and communicates that fact to the victim

Question 4

Defenses to Attempt

Answer 4

1. Impossibility
   i) Legal – intended act would not be criminal if completed
   ii) Factual (no defense) – unknown condition prevents completion of intended crime
2. Abandonment
   i) Majority/common law (no defense) – attempt complete once overt act committed
   ii) Minority/MPC – voluntary & complete withdrawal from crime

A defendant is guilty of an attempted crime if the defendant:

1) had the specific intent to commit the crime
2) performed an overt act in furtherance of that crime BUT
3) did not complete it.

_***This is true even when an unknown condition made it factually impossible to complete the intended crime***_

Question 5

Is factual impossibility a defense to conspiracy?

Answer 5

NEVER

Factual impossibility—i.e., the existence of an unknown condition that makes the unlawful objective impossible to complete—is never a defense to conspiracy.

Question 6

Mistake of fact is a defense to criminal liability for:

Answer 6

Mistake of fact is a defense to criminal liability for:

1) Specific intent crimes – when the defendant’s honest mistake, even if unreasonable, negates the requisite mens rea AND
2) General intent crimes – when the defendant’s honest and reasonable mistake negates the requisite mens rea.

***Mistake of fact is a defense to specific intent and general intent crimes, but it is never a defense to strict liability crimes like bigamy—i.e., the voluntary act of marrying someone while still legally married to another***

Question 7

Under the majority rule (default), is there a duty to retreat before using deadly force in self-defense?

Answer 7

NO.

Under the majority rule (default), there is no duty to retreat before using deadly force in self-defense.

And though a minority of jurisdictions require retreat before using deadly force if it is safe to do so, a person never has a duty to retreat in his/her own home.

Question 8

When is the use of deadly force in self defense justified?

Answer 8

The use of deadly force in self-defense is justified when a person:

(1) actually and reasonably believes that deadly force is necessary to prevent imminent serious bodily harm or death AND
(2) is not the initial aggressor.

Additionally, a person generally has no duty to retreat before using deadly force.

Question 9

is factual impossibility a defense when the attempted crime was factually impossible to commit due to circumstances unknown to the defendant?

Answer 9

NO

factual impossibility is no defense when the attempted crime was factually impossible to commit due to circumstances unknown to the defendant

Question 10

is mistake of fact a defense to specific intent crimes?

Answer 10

Mistake of fact is a defense to larceny (and other specific intent crimes) when the defendant’s honest but mistaken belief negates the requisite intent—even when that mistake is unreasonable.

Question 11

Conspiracy & Attempt

allowed to withdrawal or abandon?

Answer 11

The crime of conspiracy is complete upon the commission of an overt act so, in most jurisdictions, withdrawal is impossible once the overt act is committed.

And an attempted crime is completed once a substantial step has been taken, so abandonment is no defense in most jurisdictions.

Question 12

mistake of law vs. mistake of fact

Answer 12

Mistake of law

• Defendant mistakenly believes conduct not prohibited by law

No defense unless:

• Law prohibiting conduct was unavailable
• Defendant reasonably relied on invalid law
• Mistake negates mens rea*

Mistake of fact

• Defendant is mistaken as to a matter of fact

When mistake negates mens rea:

• Specific intent – defense if honest mistake
• General intent & malice – defense if honest & reasonable mistake
• Strict liability – no defense

Question 13

Is a mistake of law based on erroneous legal advice a defense to criminal liability?

Answer 13

Generally, NO, but…

A mistake of law based on erroneous legal advice is generally no defense to criminal liability.

• However, reliance on such advice may serve as a defense when the mistake negates the required mental state.

Question 14

When is legal impossibility a defense to attempt?

Answer 14

Legal impossibility is a defense to attempt when a person’s intended act would not constitute a crime if completed.

Question 15

An initial aggressor gains the right to act in self-defense:

Answer 15

1) when the initial aggressor’s use of nondeadly force is met with deadly force OR
2) when the initial aggressor, in good faith, completely withdraws from the altercation and communicates that fact to the victim.

Question 16

An intoxication defense can be raised if the defendant was intoxicated when the charged crime was committed due to either of the following:

Answer 16

1) Voluntary intoxication – the deliberate ingestion of a substance that the defendant knew or should have known has intoxicating effects is a defense to specific intent crimes only if the intoxication prevented the defendant from forming such intent
2) Involuntary intoxication – the unknowing or forcible ingestion of an intoxicating substance is a defense to any crime (including malice crimes) if it negates an element of the charged crime OR placed the defendant in the same mental state required for an insanity defense

Question 17

Is incorrect or bad legal advice from an attorney a valid mistake-of-law defense?

Answer 17

No.

Incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense, but it may negate the required intent or mental state for a material element of the crime.

Even if the defendant’s mistake of law was reasonable, reliance on incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense.

Question 18

Is voluntary renunciation a defense to solicitation?

Answer 18

Under the MPC, voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime.

Question 19

If factual impossibility a defense to solicitation?

Answer 19

NO.

Factual impossibility is not a defense to solicitation.

If a solicitor is part of a group that was meant to be exempted by the statute, then the solicitor cannot be guilty of solicitation (e.g., a minor female soliciting sex cannot be guilty of statutory rape).