Defenses

Question 1

INSANITY

Answer 1

• Several tests to be applied to determine whether, at time of crime, D was so mentally ill as to be entitled to acquittal

Question 2

M’Naghten Rule

Answer 2

• D is entitled to acquittal if:
  (1) a disease of the mind;
  (2) caused a defect of reason;
  (3) such that D does not know right from wrong or understand his actions
• Delusions, belief that one’s actions are morally right, or loss of control b/c of mental illness are not defenses unless this test is met.

Question 3

Irresistible Impulse Test

Answer 3

• B/c of mental illness, D could not control their actions

Question 4

A.L.I. or Model Penal Code Test

Answer 4

• Under M.P.C. test D had a mental disease/defect, and, as a result, they could not either:
  (1) appreciate the criminality of their conduct; or
  (2) conform their conduct to the law.

Question 5

Tip

Answer 5

• It is important to know these separate insanity
  tests b/c questions may ask you about a
  specific test (ex. “If the jurisdiction has
  adopted the M.P.C. test for determining insanity, what is D’s best argument for acquittal on this ground?”). To answer this type of question, you must know the requirements for that particular test. A shorthand way to remember the test is:
  M’Naghten—D does not know right from wrong or does not understand his actions
  Irresistible Impulse—(as the name says) an impulse that D cannot resist
  Durham—but for the mental illness, D would not have done the act
  A.L.I. or M.P.C.—combination of M’Naghten and irresistible impulse

Question 6

Burdens of Proof and Persuasion

Answer 6

• All Ds are presumed sane; D must raise insanity issue.
• In most states, once issue is raised, D must prove their insanity, generally by a preponderance of the evidence.
• Other states (& M.P.C.) require prosecution to prove D was sane beyond a reasonable doubt.
• Fed cts require D to prove insanity by clear & convincing evidence.

Question 7

When Defense May Be Raised

Answer 7

• May be raised at arraignment when plea is taken, but D need not raise it then.
• A “not guilty” at that time does not waive right to raise defense in the future`

Question 8

Pretrial Psychiatric Examination

Answer 8

• If D does not raise insanity issue, they may
  refuse a ct-ordered psychiatric exam to determine their competency to stand trial.
• If D raises insanity issue, they may not refuse to be examined by a psychiatrist appointed to aid ct in resolution of his insanity plea.

Question 9

Post-Acquittal Commitment to Mental
Institution

Answer 9

• In most jurisdictions, D acquitted by reason of insanity may be committed to a mental institution until cured.
• Confinement may exceed max period of incarceration for offense charged

Question 10

Mental Condition During Criminal Proceedings

Answer 10

• Under the Due Process Clause D may not be tried, convicted, or sentenced if, due to mental disease/ defect, they are unable
  (1) to understand nature of proceedings brought against them; or
  (2) to assist their lawyer in preparation of their defense.
• D may not be executed if they are incapable of understanding nature & purpose of punishment.

Question 11

Diminished Capacity

Answer 11

• Some states: Defense of “diminished capacity” - D may assert that due to a mental defect short of insanity, they did not have mental state required for crime charged.
• Most states allowing diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well.

Question 12

INTOXICATION

Answer 12

• Intoxication may be caused by any substance (ex. drugs, alcohol, medicine).
• It may be raised whenever intoxication negates an element of crime.
• Voluntary & involuntary intoxication.

Question 13

Voluntary Intoxication

Answer 13

• Voluntary intoxication: result of intentional taking w/o duress of a substance known to be intoxicating.

Question 14

Voluntary Intoxication: Defense to Specific Intent Crimes

Answer 14

• Evidence of “voluntary” intoxication may be offered by D only if crime requires purpose (intent)/ knowledge, & intoxication prevented D from formulating purpose/ obtaining knowledge.
• Thus, voluntary intoxication may be a good defense to specific intent crimes, but not to general intent, malice, or strict liability crime (ex. voluntary intoxication will be a good defense to first degree (premeditated) murder, but not second degree murder, b/c it includes CL (malice) murder).

Question 15

Tip

Answer 15

For crimes that require recklessness (conscious disregard of a substantial & unjustifiable risk), a person who would have been aware of risk had he not been intoxicated acts recklessly w/ regard to the risk. Additionally, defense is not available if D purposely becomes intoxicated in order to establish defense.

Question 16

Note

Answer 16

For purposes of exam, addicts & alcoholics who are intoxicated when they commit a crime are considered to be voluntarily intoxicated rather than involuntarily intoxicated. A person with an addiction may try to argue that intoxication is not truly voluntary b/c their addiction compels them to drink/take drugs, but this argument does not work on the exam.

Question 17

Involuntary Intoxication
.

Answer 17

• Involuntary intoxication: results from taking of an intoxicating substance w/o knowledge of its nature, under direct duress, or pursuant to medical advice while unaware of substance’s intoxicating effect.
• Involuntary intoxication may be treated as a mental illness, & D is entitled to acquittal if they meet jurisdiction’s insanity test.
• Thus, involuntary intoxication can be a defense to all crimes

Question 18

Intoxication: Relationship to Insanity

Answer 18

• Continuous, excessive drinking/drug use may bring on actual insanity & thus D may be able to claim both an intoxication & insanity defense

Question 19

INFANCY

Answer 19

• CL: no liability for act committed by child under 7.
• For acts committed by child between 7 -14, there was a rebuttable presumption that child was unable to understand wrongfulness of their acts.
• Children age 14/older were treated as adults.
• Modern statutes: no child can be convicted of a crime until a stated age is reached, usually 13/14.
• However, children can be found to be delinquent in special juvenile /family cts.

Question 20

Tip

Answer 20

Right to self-defense/other justification defenses depends on immediacy of threat; a threat of future harm is not sufficient. Thus, if someone threatens D by saying, “Tomorrow I’m going to kill you,” D is not justified in killing person to “protect” themself

Question 21

Tip

Answer 21

It is crucial to determine the level of force that D used in committing the proscribed act. As a rule of thumb, nondeadly force is justified where it appears necessary to avoid imminent injury/to retain property; deadly force is justified only to prevent death/serious bodily injury

Question 22

Nondeadly Force &

Answer 22

Nondeadly Force
- A person w/o fault may use such force as person reasonably believes is necessary to protect themself from imminent injury/to retain property
- No duty to retreat.

Deadly Force
- Person may use deadly force in self-defense if person
(1) is w/o fault;
(2) is confronted w/ “unlawful force”; and
(3) reasonably believes that they are threatened w/ imminent death/great bodily harm.

Question 23

Tip

Answer 23

If D kills in self-defense but not all 3 requirements for deadly force are met, some states would find D guilty of manslaughter rather than murder under “imperfect self-defense” doctrine

Question 24

Deadly Force: Retreat

Answer 24

• Generally, no duty to retreat
• The minority view requires retreat b/f using deadly force if vic can safely do so, unless:
  (1) Attack occurs in vic’s own home
  (2) Attack occurs while vic is making a lawful arrest; or
  (3) Assailant is in process of robbing vic

Question 25

Right of Aggressor to Use Self-Defense

Answer 25

• If one is the aggressor in the confrontation, they may use force in defense of themself only if:
  (1) They effectively withdraw from confrontation & communicate to other their desire to do so, or
  (2) Vic of initial aggression suddenly escalates minor fight into deadly altercation & initial aggressor has no chance to withdraw

Question 26

Defense of Others

Answer 26

• D has right to defend others if they reasonably believe that person assisted has the legal right to use force in their own defense.
• All that is necessary is the reasonable appearance of right to use force.
• Generally, no special relationship needed between D & person in whose defense they acted.

Question 27

Defense of a Dwelling

Answer 27

• 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/terminate another’s unlawful entry into or attack upon their dwelling.
• Deadly force may be used only to prevent a violent entry & when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling.

Question 28

Defense of Other Property

Answer 28

Defending Possession
- 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/ refrain from the activity would suffice

Regaining Possession
- 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 29

Crime Prevention

Answer 29

• Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony/ 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 30

Use of Force to Effectuate Arrest: Police Officers

Answer 30

• Nondeadly force may be used by police officers if reasonably necessary to effectuate an arrest.
• Deadly force is reasonable only if it is necessary to prevent a felon’s escape and the police officer reasonably believes that the felon threatens
  death or serious bodily harm.
• A bystander summoned by a police officer to assist them in making an arrest has the same
  authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out that the officer was exceeding their authority.

Question 31

Use of Force to Effectuate Arrest: Private Persons

Answer 31

• A private person has the same right to arrest as a police officer with the following exceptions:
• A private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable
  grounds to believe the person arrested has in fact
  committed the crime.
• 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 32

Resisting Arrest

Answer 32

• Under the majority rule, nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest.
  -(A minority of courts and the M.P.C. do not allow
  one to resist a known police officer.)
• Deadly force may be used, however, only if the person does not know that the person arresting them is a police officer.

Question 33

EXCUSE OF DURESS

Answer 33

• It is a defense to a crime 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 34

Threats to Property

Answer 34

• Traditionally, threats to property were not sufficient; however, a number of states, consistent with the M.P.C., do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm
  done to society by commission of the crime.

Question 35

NECESSITY

Answer 35

• 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
• The test is objective; a good faith belief is not sufficient.
• CL: the pressure producing the choice of evils had to come from natural forces; modern cases have abandoned this requirement.

Question 36

Limitation—Death

Answer 36

Causing the death of another person to protect property is never justified.

Question 37

Limitation—Fault

Answer 37

• The defense of necessity is not available if D is
  at fault in creating the situation requiring that they choose between 2 evils.

Question 38

Duress Distinguished

Answer 38

Unlike necessity, duress always involves a threat by a human

Question 39

MISTAKE OR IGNORANCE OF FACT

Answer 39

• Mistake or ignorance of fact is relevant to criminal liability only if it shows that D lacked the SOM required for the crime; thus, it is irrelevant if the crime imposes “strict” liability.

Question 40

Reasonableness

Answer 40

• If mistake is offered to “disprove” a specific intent, the mistake need not be reasonable; however, if it is offered to disprove any other state of mind, it must have been a reasonable mistake or ignorance.

Question 41

Tip

Answer 41

Don’t confuse the defense of mistake of fact with
the issue of factual impossibility, discussed earlier.
Even though in both situations the defendant is
mistaken about certain facts, the results are different. Mistake is usually raised as a defense to a crime that has been completed; mistake of fact may negate the intent required for the crime. Impossibility arises only when the defendant
has failed to complete the crime because of their mistaken belief about the facts, and is being charged with an attempt to commit the crime; factual impossibility is not a defense to
attempt.

Question 42

MISTAKE OR IGNORANCE OF LAW

Answer 42

• Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney.
• However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.

Question 43

Exceptions

Answer 43

• D has a defense if:
  (1) the statute proscribing their conduct was not published or made reasonably available prior to the conduct;
  (2) there was reasonable reliance on a statute or judicial decision; or
  (3) in some jurisdictions, there was reasonable reliance on official interpretation or advice.

Question 44

Mistake or Ignorance of Law May Negate Intent

Answer 44

• If D’s mistake/ignorance as to a collateral legal matter proves that D lacked the SOM required for crime, they are entitled to acquittal.
• The ignorance or mistake must involve the elements of the crime, not the existence of a statute making the act criminal.
• Ex. D cannot be found guilty of selling a gun to a known felon if D thought that the crime buyer had been found guilty of was only a misdemeanor.

Question 45

ENTRAPMENT

Answer 45

• Entrapment occurs if the intent to commit the crime originated not w/ D but w/ law enforcement officers.
• Entrapment exists only if:
  (1) The criminal design originated with law enforcement officers, and
  (2) D was not predisposed to commit the crime
  prior to contact by the government.
• Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.

Question 46

Unavailable—If Private Inducement or If
Material for Crime Provided by Government Agent

Answer 46

• A person cannot be entrapped by a private citizen.
• Under federal law, an entrapment defense cannot be based solely on the fact that a government agent provided an ingredient
  for commission of the crime (ex. ingredients for
  drugs), even if the material provided was contraband.

Question 47

Tip

Answer 47

Entrapment is a difficult defense to establish in
court and so too on the MBE. In fact, on the exam,
the defendant is usually predisposed to commit
the crime and thus entrapment usually is a wrong choice.