Defenses Flashcards
Chapter 9
What are the three categories for defenses?
- Failure of Elements (FED) defenses
- Affirmative defenses
- Public Policy defenses
What is the failure of elements defense?
This describes defenses that seek to raise a reasonable doubt that the prosecution proved one or more elements of the crime or defendant’s identity; the idea that the prosecution failed to prove one or more elements of its case
What are affirmative defenses?
It presents new matter to excuse or justify conduct that would otherwise lead to liability
What are public policy defenses?
The legislature decides individuals should not be prosecuted even though they may be guilty
What failure of elements defenses are available?
- Mistake of Fact
- Rape prosecutions: defendant argues that his mistake about consent negates mens rea, since he lacked intent to commit rape
- Accident: defendant acted without forming the mental state necessary to make his actions a crime
- Alibi: defendant was not at the crime when it took place
- Mental Illness: the person does not have the mens rea for the charged offense (used for this purpose, mental illness is an FED; can be used as a defense for specific intent crimes but not general intent crimes unless the crime requires knowledge)
What is failure of evidence: mistake of fact defense?
The jury believes defendant’s evidence of mistake, then defendant lacked the mens rea required for guilt (defense does not help strict liability offenses)
How does failure or evidence: mistake of fact affect general and specific intent?
General intent: mistake must have been honest AND reasonable under the circumstances
Specific intent: mistake must have been honest, but it does not have to be reasonable
What affirmative defenses are available?
- Entrapment
Justifications: the defendant’s conducts under the circumstances were morally correct
1. self-defense (perfect and imperfect)
2. necessity
Excuses: defendant did the wrong thing and the acts were not morally defensible; however, there is something wrong with the defendant, some defect renders the defendant morally blameless
1. Duress
2. Insanity
What is self defense?
When a person kills to protect themselves from greater harm
What is perfect self-defense?
The defendants need for self defense was honest and reasonable
*This is a complete defense and a defendant can be acquitted
What are the elements for perfect self-defense?
- The defender honestly believed they were in imminent danger of being killed or suffering great bodily injury or being raped, maimed, or robbed
- honest belief that the immediate use of deadly force was necessary to defend against imminent danger
- As they were known and appeared to the defender, the beliefs in (1 and 2) were reasonable
- Used no more force than reasonably necessary to defend against the imminent danger
- The defender was not the initial agressor
What is imperfect self-defense?
The need for self defense was honest but unreasonable belief that defender is in imminent danger
“Imperfect self-defense is a partial defense and is still liable. Lowers the intent to kill murder to voluntary manslaughter
What is the necessity defense?
In extreme circumstances, a defendant commits one evil in order to prevent a greater evil
What are the elements to necessity?
- defendant acted in an emergency to prevent significant imminent harm or evil to defendant or others
- There was no adequate legal alternative
- the harm caused by violating the law was less than the harm to be prevented (choice of evils)
- Defendant subjectively believed she/he was choosing the lesser evil;
- Defendants belief was reasonable under the circumstances as they appeared to defendant; and
- defendant did not contribute substantially to the emergency
What is a duress defense?
What defendant did was wrong but under the circumstances of such extreme pressure, you are not blameworthy as it doesn’t feel right to punish you (not a defense to capital crimes like murder)
What are the elements for duress?
- an immediate threat or serious bodily injury
- a well-grounded fear that the threat will be carried out
- No reasonable opportunity to escape the threatened harm
What is the insanity defense?
Society says this person did something wrong, but because the insane person’s mental illness renders the person morally blameless, it is wrong to punish this person
What is entrapment?
When an innocent person gets entrapped into committing a crime. The police conduct must be:
1. directed to a specific person to constitute entrapment
2. must pressure the suspect by overbearing conduct
What are the two approaches to determining whether entrapment occurred?
The (1) Subjective approach and (2) Objective approach
What is the subjective approach in entrapment?
It examines the defendant’s subjective predisposition to commit the crime.
1. Was the crime induced by officer of the government? (inducement occurs when the government implanted the criminal design in the defendant’s mind; by pressure, assurances nothing is wrong with the acts, persuasion, threats, coercive tactics etc)
2. Was the defendant predisposed to commit the offense? (what is the likelihood that the defendant would commit the crime without government intervention; a predisposed person is one who is presently ready and willing to commit such a crime, a prior conviction is relevant but not conclusive)
*Used by federal courts and a majority of states
What is the objective approach in entrapment?
Focuses more on the police conduct and less on the defendant’s predisposition
1. Did the police create a strong likelihood that the offense would be committed by an innocent person, as opposed to someone ready and willing to break the law?
*Used in California and a minority of states
What public policy defenses are available?
- Statute of limitations: it is unfair to prosecute individuals if so much time has elapsed since the offense would be difficult for the defendant to mount an effective defense; (1) evidence may be hard to find and (2) witnesses may have forgotten, moved away, or died
- Diplomatic immunity: certain diplomats have immunity from prosecution
*There is no statute of limitations on murder or “an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money.”
How can one bring the insanity defense?
“only when the accused person proves by a preponderance of evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”
What are the four approaches to the insanity defense?
- M’Naghten
a. Irresistible Impulse | Volitional Test - M’Naghten plus irresistible impulse test
- The Model Penal Code
- The Product Rule
What is the M’Naghten test (cognitive test)?
California uses this test. Here we lose the mens rea.
(1) Lacks the capacity to understand the wrongfulness of acts; OR
(2) Cannot appreciate the nature + quality of actions
What is the irresistible impulse test (volitional test)?
Here we lose the actus reus.
1. defendant cannot exercise the self-control or conform her actions to the requirements of the law
What is the M’Naghten plus irresistible impulse test?
Here we lose both.
1. Defendant cannot exercise the self-control or conform her actions to the requirements of the law; and
2. Defendant lacks the capacity to understand the wrongfulness of acts OR cannot appreciate the nature + quality of actions
What is the Model Penal Code test?
Here we lose both. Defendant lacked substantial capacity to:
1. appreciate the criminality of her conduct (doesn’t know it’s criminal); OR
2. to conform her conduct to the requirements of law (cant control actions)
What is the “Product” rule?
Here the mental illness caused the crime.
1. The crime was a product of a mental disease or defect
In a trial, what must the prosecutor prove to bring charges?
- prove every element of the crime beyond a reasonable doubt; and
- prove the identity of the defendant beyond a reasonable doubt
- the burden of proof beyond a reasonable doubt
Who has the burden of proof in affirmative defenses?
The legislature is free to allocate the burden of proof as it deems appropriate
1. When the burden is on prosecution= disprove beyond a reasonable doubt
2. When the burden is on the defendant = disprove by a preponderance of evidence or clear and convincing evidence
Who has the burden in self-defense defenses?
- defendant claiming defense = burden of presenting evidence of each element of self-defense
- Prosecutor must disprove each element beyond a reasonable doubt
Who has the burden in duress defenses?
- defendant has the burden of producing evidence for the defense
- prosecutor has the burden to disprove defense beyond a reasonable doubt
Who has the burden in necessity defenses?
- defendant has the burden of producing evidence of each element of the defense
- defendant has the burden of proving the defense by a preponderance of evidence
Who has the burden in entrapment?
- defendant has the burden of proving entrapment by a preponderance of the evidence
Who has the burden in an FED: mistake of fact defense?
- defendant has the burden of producing evidence of mistake, and the burden of production
What are Mayberry instructions?
Instructions that determine whether a defendant used force in a rape and used a good faith, albeit a mistaken belief that victim consented
What are the two components for the Mayberry instruction?
Subjective: asks whether the defendant honestly, and in good faith, albeit mistaken, believed the victim consented to sexual intercourse
1. If there is no equivocal conduct by the victim—instruction not warranted
2. If there is substantial equivocal conduct by the victim, then move on to objective component
Objective: whether defendant’s mistake was reasonable under the circumstances (if woman’s account is only consistent with rape and defendant argues actual rape, instruction not warranted
Is there a defense for mistake of law or ignorance of law?
No, this is nearly true for all general intent crimes, but for specific intent this can sometimes be defense
What is immunity from prosecution?
The 5th amendment allows someone a right to not incriminate himself. If the prosecution or defense wants to compel a person’s testimony, they can ask a judge to grant the person immunity from prosecution.
What is “use” immunity?
prevents the use against a person of their immunized testimony; also extends to information derived from the testimony, called derivative use immunity, and the person who receives this use or derivative use testimony must testify. This person can be prosecuted but the prosecutor cannot use the compelled testimony or information derived from the testimony
What is “transactional” immunity?
the person cannot be prosecuted for any transaction described in the person’s testimony. This immunity is broader than use immunity
What is a duty to retreat?
A person cannot use force in self-defense if the person “knows that he can avoid the necessity of using such force with complete safety by retreating.” (In California, there is no duty to retreat)
What does People v. Clark say about a duty to retreat?
a defendant is not required to retreat and may in fact pursue the assailant until the danger of injury or unlawful touching has passed, but a defendant may use force only as long as the danger exists or reasonably appears to exist
What is the self-defense against home invaders conclude?
A person is justified when defending their own house against one who intends to enter the house with the purpose of offering violence to any person therein.
One who uses force shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self or family or other member
What is the defense of others?
A person may come to the assistance of another who is being attacked or threatened with an imminent attack.
1. If the victim is being attacked or threatened with deadly force, the rescuer may use deadly force to protect the victim
What is voluntary intoxication (VI)?
One who voluntarily drinks or takes drugs.
1. It is not a defense to general intent crimes but can be a defense to specific intent crimes or anything including WPD is included
*VI can impact accomplice liability
What is admissible evidence in voluntary intoxication (VI)?
Evidence on the issues of premeditation, deliberation, and express malice
What is inadmissible evidence in voluntary intoxication (VI)?
- on the question of implied malice
- VI causing unconsciousness can reduce murder to involuntary manslaughter
- to prove defendant believed it was necessary to act in self-defense
What is involuntary intoxication (II)?
When a person is involuntary drugged through:
1. coerced intoxication
2. innocent or mistaken intoxication (spiked punch)
3. an unanticipated reaction to a drug taken on medical advice
4. pathological intoxication—defendant knew she was taking drug but the reaction was highly excessive
*II is a defense to both specific and general intent crimes
What is the mental illness and mens rea connection?
The mental illness prevents the person of the capacity to have mens rea for the charged crime —can be a defense for a specific intent crime
What is the connection between mental illness and competence to stand trial?
A person cannot be tried or adjudged to punishment while that person is mentally incompetent. As a result of mental disorder or development disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner
