Defenses

Question 1

What the typical affirmative defenses available (other than intoxication and insanity)?

Answer 1

Self-defense
Defense of others
Defense of property
Duress
Entrapment

Question 2

What must be shown to sustain a self-defense defense?

Answer 2

• D has burden of proving justification (D acted without fault) or excuse (D acted with fault)
• Retreat—no obligation to retreat unless D is at fault or provoked the aggressor
• Aggressor’s right to use self-defense
  o Has right to act in self-defense if he abandons the original attack by retreating and
  making his desire for peace known
  o Excusable homicide if aggressor’s proper self-defense results in death of victim

Question 3

Is deadly force permissible in self-defense?

Answer 3

OK in self-defense only if reasonable grounds to believe D in imminent danger of great bodily harm or death at the time deadly force is used

o Fear not enough
o May be used to defend against an intruder in one’s own home

Question 4

What is the obligation to retreat prior to self-defense?

Answer 4

no obligation to retreat unless D is at fault or provoked the aggressor

Question 5

Can an initial aggressor use force in self-defense?

Answer 5

o Has right to act in self-defense if he abandons the original attack by retreating and making his desire for peace known

o Excusable homicide if aggressor’s proper self-defense results in death of victim

Question 6

When is defense of others permitted?

Answer 6

right to defend others (not just family) exists under the same circumstances in which self-defense would be acceptable

Question 7

What is permitted in defense of property?

Answer 7

• Reasonable steps OK, including non-deadly force, if D is in lawful possession of property threatened by another’s conduct and has no time to seek police
• D must reasonably believe real property is in immediate danger of unlawful trespass or that personal property in immediate danger of being carried away
• Force cannot be unreasonably disproportionate to perceived harm
• No right to use deadly force in defending property

Question 8

What must be shown to sustain a duress defense?

Answer 8

• D violated law because third party’s unlawful threat caused D to reasonably believe death or harm to himself or another could only be avoided by violating the law.
• Not a defense to intentional murder

Question 9

What must be shown to sustain an entrapment defense?

Answer 9

• Criminal offense planned and induced by police or government agent
• D was not predisposed to commit crime
• BUT entrapment not a defense when police merely afford an opportunity for the commission of a crime to D willing to commit it