Defenses Flashcards
Criminal procedure
- Gov’t has burden of production; case in chief establishes all required elements
- If affirmative defense is raised, D must establish elements by some standard
- If D puts forth sufficient evidence to satisfy defense, burden shifts back to gov’t to rebut
- Gov’t must prove beyond a reasonable doubt the lack of the defense
Affirmative Defenses
Evidence of all elements of a crime are shown, but D is saying he should not be charged anyway because of some reason
Justification
- Self-defense
- Necessity
Excuse
- Duress
- Insanity
Justification defenses
Harm D causes was done to prevent an even greater harm, and therefore it is justified
- negates social harm
- act was for the greater good
- focuses on the ACT itself
- acting with their own free will, but justified
- no accomplice liability if principal’s conduct is justified (cannot be accomplice to something that is not a crime)
Excuse defenses
The actor committed a wrong, but because of the circumstances that the actor was under at the time they committed the wrong, their conduct should be excused
- focuses on the CIRCUMSTANCES
- not acting with their own free will
- there is a social harm, but the circumstances negate moral blameworthiness
- CAN be an accomplice to principal’s conduct, even if principal’s conduct was excused, because the defense is particular to the principal
Other non-affirmative defenses
- Failure of proof defense: Gov’t has not met its burden of showing all elements of the offense
- Offense modifications: The person’s conduct, though it may satisfy the elements, is not the kind of social harm this particular criminal law was intended to prevent
- Non exculpatory public policy defenses: Public policy rationales that support the conclusion that we should not be able to prosecute this person in the particular instance (immunity, privilege, SOL)
Common law necessity
3 Elements
- Act must have been done to prevent an imminent harm (“significant evil”)
- No adequate alternative
- Harm caused is the lesser of the two evils (objective)
Limitations
- Not a defense to homicide
- D cannot be at fault for bringing about the harm
- Limited to force of nature, as opposed to human action
MPC necessity
Broader than the CL
- CAN use as a defense to homicide
- no imminency requirement
- emphasis on whether choice was the lesser of two evils
- D does not automatically lose the defense if they were at fault in creating the situation (if prosecuted for intentional crimes, can still assert defense if they acted recklessly or negligently in bringing about the harm)
Common law self defense
3 elements to justify use of deadly force
- Threat (actual or apparent) of deadly force
- Threat is unlawful and imminent
- D reasonably believes force is necessary to prevent death or serious bodily injury to oneself
Cannot be initial aggressor
3 components (align with elements)
- Necessity: Force should not be used against another person unless, and until, such force is reasonably necessary (imminency – how quickly was this thing about to happen to you?)
- Proportionality: Force used must be in proportion to harm one is threatened with
- Reasonable belief: D’s belief is one a reasonable person in D’s situation would have possessed (quasi-objective) – belief must be genuine AND reasonable
Retreat rule: Before a person can use force to defend oneself, one must be backed against the wall with no opportunity to get to safety/avoid the harm (“retreat to the wall”)
– evolved over time: now must retreat presuming there is a safe way to avoid serious bodily harm or death
Castle Doctrine: Exception to retreat rule; don’t have a duty to retreat if you are in your own home (but still must be proportional and cannot be initial aggressor)
MPC self defense
Different take on the imminency requirement: Does not focus on the immediacy of the attack, but rather on how soon the non-aggressor needs to use force to protect oneself; unlawful harm need not be imminent, but the necessity of using force against the threatened attack on the present occasion must be imminent
Retreat rule: If non-aggressor knows they can retreat with complete safety from injury, then they have an obligation to do so; otherwise, no duty to retreat
Broadens castle doctrine: Does not limit to home, includes any space you own or have legal rights to
Belief that force is necessary need only be honest; does not have to be reasonable (minority position)
– BUT if D is reckless in regard to facts that caused D to believe deadly force is necessary, then D cannot claim self defense against any charges that would contain a reckless or negligent mens rea
Stand your ground law
Eliminates a duty to retreat in a public place before using deadly force in self defense
Applies if you are attacked in any place you have a legal right to be
Does not apply if you are somewhere unlawfully (past curfew, trespassing, etc.) or are engaged in illegal activity (ex: unlawfully possessing a firearm)
Still must be proportionate force
Common law duress
3 elements
- Another PERSON threatened imminent death or serious injury against D or D’s close relative
- D reasonably believed the threat
- No reasonable escape from threat (viewed in light of situation D was in)
Limitations
- D cannot be at fault for exposing self to threat
- No defense in homicide cases
MPC duress
Broader than CL
- threat to bodily harm does not have to imminent; as long as a person of reasonable firmness in D’s circumstances would have committed the offense (quasi-objective)
- threats to financial loss, property, reputation are insufficient
- CAN be used as a defense to homicide
- person of another does not have to be an immediate family member
- cannot be reckless in placing oneself in a situation where it was probable that they would be subjected to coercion
Insanity (generally)
A person’s mental condition at the time of the offense (not at the time of trial)
- A legal definition, not a diagnosis of a mental illness
- NOT the same thing as competency to stand trial
- Rare defense because it is very difficult to be successful
- If a person is found not guilty by reason of insanity, civil commitment is indefinite; does not have a set sentence like a criminal punishment would
- in most states, burden of production is on D to put forth evidence he was insane by preponderance of the evidence (except under federal law – standard is clear and convincing)
M’Naghten Test
Cognitive based
Majority of states adopt this
Two part test
- At the time of the act, did D not “know” the nature and quality of the act they were doing? OR
- If D did know, did they know what they were doing was “wrong”?
If D did not know their conduct was wrong = insane
Narrow definition of know: A person can describe what they are doing and can acknowledge the forbidden nature of their conduct (prosecution would argue this)
Broad definition of know: A person can appreciate the effects of their actions on others (defense would argue this)
*Person who knows what they were doing was wrong but cannot control oneself is not insane under this test
Criticisms: Doesn’t recognize degrees of incapacity; sometimes cognition and volition are more intertwined, but this test is not willing to recognize an issue of lack of volition/self control with respect to mental illness
Irresistible Impulse Test
Volitional based
- unable to control oneself
- not acting with free will
Person lacked the power to choose between right and wrong and avoid doing the act
- may know the difference between right and wrong, but cannot control oneself
Insane if acted from an uncontrollable impulse
Criticisms: Lack of self control is not something we can evaluate with scientific certainty
