Defenses

Question 1

What is the M’Naghten Rule for the insanity defense? (3 + English)

Answer 1

D is entitled to acquittal if:

(1) a disease of the mind
(2) caused a defect of reason
(3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions

[In English] D does not know right from wrong or does not understand his actions.

Question 2

What is the irresistible impulse test for the insanity defense? (+ English)

Answer 2

D is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law.

[In English] an impulse that defendant cannot resist

Question 3

What is the Durham (or New Hampshire) test for the insanity defense? (+ English)

Answer 3

D is entitled to acquittal if the crime was the product of their mental illness.

[In English] But for the mental illness, D would not have done the act.

Question 4

What is the ALI or MPC test for the insanity defense? (2 + English)

Answer 4

D is entitled to acquittal if they had a mental disease or defect, and, as a result, they lacked the substantial capacity to either:

(1) appreciate the criminality of their conduct, OR
(2) conform their conduct to the requirements of law

[In English] combination of the M’Naghten Rule and irresistible impulse test

Question 5

What are the presumptions and burdens of proof and persuasion regarding an insanity defense?

(1) Presumptions
(2) Majority view
(3) Minority view/MPC
(4) Federal courts

Answer 5

(1) All defendants are presumed sane. D must raise the insanity issue.
(2) In most states, once issue is raised, D must prove their insanity by preponderance of the evidence.
(3) In some states (and under the MPC), the prosecution must prove D was sane beyond a reasonable doubt.
(4) Federal courts require D to prove insanity by clear and convincing evidence.

Question 6

When may the insanity defense be raised?

Answer 6

D may be raised at arraignment, but need not be at that time, and may be raised in the future.

Question 7

What happens if D pleads insanity and is acquitted?

Answer 7

D may be committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged.

Question 8

Under the Due Process Clause, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, they:

Answer 8

(1) are unable to understand the nature of the proceedings being brought against them; OR
(2) are unable to assist their lawyer in the preparation of their defense

D may not be executed if they are incapable of understanding the nature and purpose of punishment.

Question 9

What is a diminished capacity defense?

Answer 9

Recognized in some states, a D may assert that as a result of a mental defect short of insanity, they lacked the requisite mental state for the crime charged.

Most states recognizing the diminished capacity defense limit it to specific intent crimes.

Question 10

What is an intoxication defense? When may it be raised?

Answer 10

D may assert as a defense that they were intoxicated by any substance (e.g., drugs, alcohol, medicine) at the time they committed the charged offense only if intoxication negates one of the elements of the crime.

Question 11

When may voluntary intoxication be raised as a defense?

Answer 11

Evidence of voluntary intoxication (i.e., D took the substance without duress knowing it to be intoxicating) may be offered by D ONLY IF:

(1) the crime requires purpose (intent) or knowledge, AND
(2) the intoxication prevented D from formulating the purpose or obtaining the knowledge.

So, voluntary intoxication may be a defense to specific intent crimes, but not general intent, malice, or strict liability crimes.

DOES NOT APPLY if D purposely becomes intoxicated to establish the defense.

Question 12

When may involuntary intoxication be raised as a defense?

Answer 12

Only if it results from the taking of an intoxicating substance

(1) without knowledge of its nature,
(2) under direct duress imposed by another, OR
(3) pursuant to medical advice while unaware of the substance’s intoxicating effect.

Involuntary intoxication may be treated as a mental illness, and D is entitled to acquittal if they meet the jurisdiction’s insanity test. It is a defense against all crimes.

Question 13

What is an infancy defense? (common law + modern view)

Answer 13

(Common Law) No liability for an act committed by a child under age 7. Between ages 7 and 14, rebuttable presumption that the child was unable to understand the wrongfulness of their acts. Age 14 and older, treated as adults.

(Modern View) No child can be convicted of a crime until age 13-14. Children can be found to be delinquent in special juvenile or family courts.

Question 14

What is the rule for nondeadly force in a self-defense claim? (+ English)

Answer 14

A person without fault may use whatever force the person reasonably believes is necessary to protect himself from the imminent use of unlawful force upon himself.

[Plain English] Nondeadly force is justified where it appears necessary to avoid imminent injury or to retain property.

Question 15

What is the rule for deadly force in a self-defense claim? (+ English)

Answer 15

A person may use deadly force in self-defense if the person:

(1) is without fault
(2) is confronted with “unlawful force” AND
(3) reasonably believes that they are threatened with imminent death or great bodily harm

[Plain English} Deadly force is justified only to prevent death or serious bodily injury.

Question 16

What is the duty to retreat for a self-defense claim? (majority + minority)

Answer 16

(Majority) No duty to retreat before using deadly force.

(Minority) Duty to retreat before using deadly force if the victim can safely do so, UNLESS:

(1) the attack occurs in the victim’s own home
(2) the attack occurs while the victim is making a lawful arrest OR
(3) the assailant is in the process of robbing the victim

Question 17

If D is the aggressor in the confrontation, D may use force in defense of himself ONLY IF: (2)

Answer 17

(1) They effectively withdraw from the confrontation and communicate to the other their desire to do so, OR
(2) The victim of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Question 18

What is the rule for defense of others?

Answer 18

D has the right to defend others if he reasonably believes that the person he assisted has the legal right to use force in their own defense.

All that is necessary is the reasonable appearance of the right to use force (even if that appearance was mistaken).

Question 19

What is the rule for defense of a dwelling? (ND + D)

Answer 19

A person may use nondeadly force in defense of their dwelling when, and to the extent that, they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling.

A person may use deadly force only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.

Question 20

When/what kind of force may be used in defense of property besides a dwelling?

Answer 20

Deadly force may never be used in defense of property

Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference.

Force may not be used if a request to desist or refrain from the activity would suffice.

Question 21

When/what kind of force may be used to regain possession of property?

Answer 21

A person may use force to regain possession of property that they reasonably believe was wrongfully taken ONLY IF they are in immediate pursuit of the taker.

Question 22

When/what kind of force may be used to prevent crime?

Answer 22

*Nondeadly force** may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace.

Deadly force may be used only if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life.

Question 23

What kind of force may police officers use to effectuate an arrest? (+ bystander)

Answer 23

**Nondeadly force may be used if reasonably necessary to effectuate an arrest.

Deadly force is reasonable only if it is necessary to prevent a felon’s escape AND the officer reasonably believes that the felon threatens death or serious bodily harm.

A bystander summoned by a police officer to assist in making an arrest has the same authority to use force as the officer, and the bystander’s good faith assurance is justified even if it turns out that the officer was exceeding their authority.

Question 24

What is the rule regarding use of force by private persons to effectuate an arrest?

Answer 24

A private person has the same right to arrest as a police officer with the following exceptions:

(1) A private person has a privilege to use nondeadly force if a crime was in fact committed and the person has reasonable grounds to believe the person arrested has in fact committed the crime.
(2) A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.

Question 25

What is the rule for use of force to resist arrest? (majority + minority/MPC)

Answer 25

(Majority) Nondeadly force may be used to resist an improper arrest even if a known officer is making the arrest.

Deadly force may be used only if the person does not know that the person arresting them is a police officer.

(Minority) A person may not resist a known police officer.

Question 26

What is the defense of duress?

Answer 26

It is a defense to crimes other than intentional homicide that D reasonably believed that another person would imminently inflict death or great bodily harm upon them or a member of their family if D did not commit the crime.

Threats to harm a third person may also suffice to establish the defense of duress.

Question 27

Are threats to property sufficient to establish a defense of duress?

Answer 27

(Common Law) No.

(Minority/MPC) Yes, assuming that the value of the property outweighs the harm done to society by commission of the crime.

Question 28

What is the defense of necessity? (+ CL + modern view)

Answer 28

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime.

Objective test. A good faith (subjective) belief is not sufficient.

(Common Law) The pressure of producing the choice of evils had to come from natural forces.

(Modern View) Abandoned the natural forces requirement.

Question 29

When is duress unavailable as a defense? (3)

Answer 29

(1) Never justified to kill a person to protect property.
(2) Not available if D is at fault in creating the situation requiring they choose between two evils
(3) Not available if there is not a threat by a human.

Question 30

When is the defense of mistake (or ignorance) of fact relevant?

Answer 30

Mistake or ignorance of fact is relevant to criminal liability only if it shows that D lacked the state of mind required for the crim.

It is irrelevant if the crime imposes “strict” liability.

Question 31

If mistake is offered to disprove a specific intent, the mistake _______. (standard)

If mistake is offered to disprove any other state of mind, the mistake _______. (standard)

Answer 31

(1) does not have to be reasonable

(2) must be reasonable

Question 32

When is the defense of mistake of law available? (+ exceptions)

Answer 32

Generally, it is not a defense that the defendant believed their activity would not be a crime, even if the belief was reasonable and based on legal advice.

However, if D’s reliance on an attorney negates a necessary mental state element, that reliance can demonstrate that the government has failed its burden of proof.

EXCEPTIONS:
D has a defense if:

(1) the statute proscribing D’s conduct was not published or made reasonably available prior to the conduct
(2) there was reasonable reliance on a statute or judicial decision
(3) (minority) there was reasonable reliance on official interpretation or advice

Question 33

If D’s mistake or ignorance as to a collateral legal matter proves that the defendant lacked the state of mind required for the crime, they are entitled to _______.

Answer 33

acquittal

(The mistake or ignorance must involve the elements of the crime, **not the existence of a statute* making the act criminal. For example, D cannot be found guilty of selling a gun to a “known felon” if D thought that the buyer had only been convicted for a misdemeanor.)

Question 34

What is entrapment? When does entrapment exist? (2)

Answer 34

Entrapment occurs if the intent to commit the crime originated not with the defendant but with law enforcement officers.

Entrapment exists only if:

(1) the criminal design originated with law enforcement officers, and
(2) the defendant was not predisposed to commit the crime prior to contact by the government

Question 35

In what scenarios does entrapment fail as a defense? (3)

Answer 35

(1) Law enforcement merely provided the opportunity for a predisposed person to commit a crime
(2) When the alleged entrapment was by a private citizen
(3) Federally, law enforcement provided materials for commission of the crime, even if the materials were contraband