Defenses

Question 1

What is a credibility of evidence defense? Examples?

Answer 1

Fact-based defense focused on caling into question the credibility of the prosecution’s evidence.

Misidentification, witness lying/bias

Question 2

What is a government misconduct defense? Examples?

Answer 2

Can be question of law or fact-based argument for jury focused on the legality or thoroughness of the investigation

Entrapment, prosecutorial misconduct, illegal search or seizure, forensic errors

Question 3

What is a sufficiency of the evidence defense? Examples?

Answer 3

Question of law challenging that the government has not presented evidence to prove each element of the offense beyond a reasonable doubt

No proof of requisite mental state (mistake of law/fact), no proof of completed act

Question 4

What is an affirmative defense? Examples?

Answer 4

A justification or excuse. Question of law not challenging that the elements ofthe offense have been met, but rather that a legal justification or excuse exists.

Self defense, duress/necessity, insanity, intoxication

Question 5

How are affirmative defenses proven? Who bears the burden?

Answer 5

With affirmative defenses, the burden of proof shifts to the defendant, usually by a preponderance of the evidence, when the defense establishes separate and distinct facts in mitigation of culpability, as opposed to defenses that negate an element of the crime.

Question 6

What are justifications?

Answer 6

Justifications focus on the act, not the actor, and excuse criminal conduct because it benefits society in some way or it is useful to society.

Question 7

What are excuses?

Answer 7

Excuses focus on the actor, not the act, and excuse culpability because the actor is judged not to be blameworthy.

Question 8

Is there a limit to what/how many defense theories are raised?

Answer 8

As long as there is sufficient evidence to support whatever defense theory they want to bring up, they can bring multiple defenses, even if the theories contradict. It is up to the jury to decide whether they buy any of the theories or not.

Question 9

When must a judge instruct a jury about a defense? Why?

Answer 9

If a theory is sufficiently raised, the judge must instruct the jury on that defense. The Due Process clause guarantees a defendant’s right to present a defense.

Question 10

When may/may not evidence of a defense theory be excluded?

Answer 10

When the exclusion of evidence significantly undermines fundamental elements of the defendant’s defense, it becomes unconstitutional. However, a trial court may exclude a defdendant’s evidence when their theory is unsupported, speculative, and far-fetched and could thereby confuse or mislead the jury.

Question 11

Must the prosecution establish a defendant’s identity?

Answer 11

Yes. The prosecution must establish the defendant’s identity beyond a reasonable doubt as the perpetrator of the crime.

Question 12

When does identity play a role in defense theories?

Answer 12

A common defense theory is that a third party actually committed the crime.

Question 13

What evidence must a defendant provide to establish that a third person committed the crime?

Answer 13

Evidence that the third party had either motive or opportunity alone is too speculative. The defendant must have evidence that the third party had both motive and oppotunity.

Question 14

What is often required for an alibi defense?

Answer 14

When the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecution.

Question 15

Regarding an alibi defense,

What does the notice usually state? Consequences of no notice?

Answer 15

The notice shall state where the defendant contends he was and names or witnesses to support the defense. Failure to provide the required notice bars the defendant from raising an alibi defense at trial.

Question 16

Regarding the alibi defense,

Why is notice required?

Answer 16

Notice requirements are designed to eliminate the surprise alibi testimony at trial because the state cannot investigate alibi evidence until they know where and with whom the defendant claims to have been at the time of the crime.

Question 17

Does the defendant have to provide notice if simply stating he wasn’t there?

Answer 17

No. Because the state knows it has to prove that the defendant was present at the scene fo the crime, so it should not be surprised by evidence that the defendant was merely not at the scene.

Question 18

What is the necessity defense?

Answer 18

Necessity (choice of evils) is a defense when a person reasonably believes that the commission of a crime is necessary to avoid an imminent and greater injury to society than that involved in the crime. This is an objective test.

Question 19

At common law, what was required of the injury in necessity?

Answer 19

At common law, the injury had to come from natural forces.

Question 20

What must the defendant prove for a necessity defense?

Answer 20

That there was an unforeseen emergency requiring immediate action to prevent imminent injury and that the criminal conduct did not exceed what was reasonably necessary to avoid the injury.

Question 21

When is the necessity defense not available? (3)

Answer 21

1. When the defendant had a reaosnable legal alterantive
2. When the “emergency” is merely economic necessity
3. When killing another person

Question 22

What are the two types of civil disobedience?

Answer 22

1. Direct: challenges particular law by breaking it
2. Indirect: violates a law that is not the object of protest

Question 23

When is/is not necessity a defense to civil disobedience?

Answer 23

Generally, necessity can be a defense to direct civil disobedience but not to indirect civil disobedience.

Question 24

What is duress?

Answer 24

Duress is a defense when a person reasonably believed that another person would imminently inflict death or great bodily harm upon them or their family if they did not commit the crime.

Question 25

Under duress, does it matter whether a threat is explicit or implicit?

Answer 25

A threat can be explicit or implict arising from the circumstances. Duress always involves a threat by a human.

Question 26

What is entrapment?

Answer 26

Entrapment exists when (1) the criminal design originated with law enforcement and (2) the defendant was not predisposed to commit the crime prior to contact by the government. Merely providing the opportunity for a predispossed person to commit a crime is not entrapment.

Question 27

What are the two different theories of entrapment?

Answer 27

1. The majority subjective view focuses on the defendant’s dispositoin before the offense.
2. The minority (MPC) objective view focuses on the nature of the police conduct before the crime.

Question 28

What are the stages when the defendan’ts mental health can be relevant in a criminal proceeding? (4)

Answer 28

1. Pre-trial hearings: competency to stand trial
2. Trial: Affirmative defense of insanity or diminished capacity
3. Sentencing: Mitigating circumstances
4. Execution: Competency to be executed

Question 29

What is competency?

Answer 29

A competency evaluation addresses whether the defendant, due to a mental disease or defect, lacks the capacity to (1) consult with their attorney to assist in their defense or (2) understand the nature of the proceedings brought against them,

Question 30

What if a defendant is found incompetent?

Answer 30

If a defendant is incompetent, due process considerations require suspension of the criminal trial until such time, if any, that the defendant regains the capacity to participate in his defense and understand the proceedings against him.

Question 31

After a competency evaluation,

How long can a defendant be held?

Answer 31

A defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will become competent in the near future. If there is a substantial probability, the defendant is held and reevaluated. If not, the defendant must be released or committed under civil proceedings.

Question 32

Who provides the competency evaluation?

Answer 32

Due process requires states to provide a defendant access to procedures for making a competency evaluations

Question 33

Who bears the burden to prove incompetency?

Answer 33

The state can put the burden of proof on the defendant to show incompetency. Essentially, there is a presumption of competency that a defendant must overcome by a preponderance ofthe evidence.

Question 34

Name the four insanity tests

Answer 34

1. M’Naghten Test
2. Irresistible Impulse Test
3. Durham Test
4. MPC Test

Question 35

What is the M’Naghten Test for insanity?

Answer 35

Defendant suffered a disease of the mind that caused a defect of reason so that at the time of the offense the defendant lacked the ability to either (1) understand the nature and quality of their actions (cognitive capacity) or (2) know the wrongfulness of their actions (moral capacity)

Question 36

What is the irresistible impulse test for insanity?

Answer 36

Defendant due to a mental disease or defect was unable to control their actions or conform their conduct to the law.

Question 37

What is Durham Test for insanity?

Answer 37

The offense was the product of the defendant’s mental disease or defect.

Question 38

What is the MPC test for insanity?

Answer 38

Defendant due to a mental disease or defect lacked the substantial capacity to either: (a) appreciate the criminality oftheir conduct or (b) conform their conduct to the requirements of the law

Question 39

Does the Costitution require an insanity defense?

Answer 39

No. Federal courts have left the question to the states.

Question 40

What is the defintion of mental disease or defect?

Answer 40

Mental disease or defect is not defined. The courts have expresssed reluctance to rely on medical categories and labels ebcause it is viewed as a question of legal, moral, and policy judgments rather than a medical question.

Question 41

What are examples of mental diseases or defects?

Answer 41

PTSD, schizophrenia, delusional disorder, bipolar disorder, schizoaffective disorder, major depression, moderate intellectual disability, and brief psychotic disorder

Question 42

What kind of defense is insanity?

Answer 42

Insanity is an affirmative defense. All defendants are presumed sane and must raise the issue of insanity.

Question 43

What is the burden of proof for the insanity defense? (3 approaches)

Answer 43

1. Some states: shifts to defendant to prove by a preponderance of the evidence
2. MPC: defendant raises issue of insanity, prosecution proves sanity beyond a reasonable doubt
3. Federal court and some states: shifts to defendant to prove by clear and convincing evidence

Question 44

What happens if defendant is found not guilty by reason of insanity?

Answer 44

In most juridictions, a defendant found not guilty by reason of insanity can be committed to a mental institution until cured. Depending on the severity of the offense, committal can be immediate. Confinement can exceed the maximum period of incarceration for the offense charged.

Question 45

What is the deific decree exception?

Answer 45

Insanity can also be established when a defendant knows the criminal act was wrong but believed, as a result of mental defect, that a deity commanded the act.

Question 46

What is diminished capacity?

Answer 46

Diminished capacity is a “defense” that allows a defendant to introduce evidence of a mental disease or defect that negates the mental state required for the crimes charged. The mental disease or defect does not rise to the level of insanity, though.

Question 47

How do common law states treat diminished capacity?

Answer 47

Most states that allow diminished capacity as a defense limit it to specific intent crimes, but a few allow it for general intent crimes.

Question 48

In general, what are the three approaches to diminished capacity?

Answer 48

1. Allowed as a separate defense from the insanity defense;
2. Not permitted as a separate defense but allow evidence of diminished capacity only to the extent that it negates the required mental state; or
3. Not permitted as a separate defense but allow evidence of diminished capacity when it rises to the level of insanity

Question 49

What is “guilty but mentally ill”?

Answer 49

Someone who has a mental disease or defect but the insanity defense would not apply