Defenses

Question 1

Insanity Tests

Answer 1

There are four different tests for determining whether, at the time of the crime, the defendant was so mentally ill as to be entitled to acquittal

1) M’Naghten Rule (Majority)
2) Irresistible Impulse Test (Minority)
3) Durham/New Hampshire Test
4) MPC/ALI Test

Question 2

M’Naghten Rule (Insanity)

Answer 2

A defendant 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 (a) know the wrongfulness of their actions or (b) understand the nature and quality of their actions.

Delusions, belief that one’s actions are morally right, or loss of control are not defenses unless this test is met.

Majority view

Question 3

Irresistible Impulse Test (Insanity)

Answer 3

A defendant 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. (minority view)

Question 4

Durham/New Hampshire Test (Insanity)

Answer 4

A defendant is entitled to acquittal if the crime was the product of their mental illness

This is followed only in New Hampshire

Question 5

MPC/ALI Test (Insanity)

Answer 5

A defendant 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 the law

Question 6

GA Mental Capacity Defense (Insanity)

Answer 6

In GA, there are two basis for an acquittal on the grounds of mental capacity

1) a person is not guilty if, at the time of the crime, the person did not have the mental capacity to distinguish between right and wrong in relation to the act, omission, or negligence resulting in the crime.

2) a person is not guilty when, at the time of the crime, the person, because of mental disease, injury, or congenital deficiency, acted as they did because of a delusional compulsion that mastered their will to resist committing the crime.

NOTE: The delusion must relate to a fact that, if true, would have justified the act.

Question 7

Burden of Proof (Insanity)

Answer 7

All defendants are presumed sane - the defendant must raise the insanity defense

Majority – once raised the defendant must prove insanity (normally preponderance standard)

MPC – require prosecution to prove the defendant was sane beyond a reasonable doubt

Federal Court – require the defendant to prove insanity by clear and convincing evidence

Question 8

GA Insanity Burden of Proof

Answer 8

In GA, insanity is an affirmative defense

A defendant, to overcome the presumption of insanity, must show by a preponderance of the evidence that they were insane at the time of committing the offense.

Question 9

When to Raise Insanity

Answer 9

Although insanity may be raised at the arraignment when the plea is taken, the defendant need not raise it then. A simple not guilty at that time does not waive the right to raise the defense at some future time.

Question 10

Pretrial Psychiatric Examination (Insanity)

Answer 10

If the defendant does not raise the insanity issue, they may refuse a court-ordered psychiatric examination to determine their competency to stand trial.

If the defendant raises the insanity issue, they may not refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.

Question 11

Post-Acquittal Commitment (Insanity)

Answer 11

In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a mental institution until cured.

Confinement may exceed the maximum period of incarceration of the offense charged.

Question 12

Diminished Capacity

Answer 12

Some states recognize the defense of diminished capacity under which the defendant may assert that as a result of a mental defect short of insanity, they did not have the mental state required for the crime charged.

Majority limit this defense to specific intent crimes

Question 13

Insanity v. Incompetency

Answer 13

Insanity Defense – the issue is whether the defendant was insane at the time of the crime

Incompetency – the issue is whether, at the time of trial, the defendant cannot (1) understand the nature of the proceedings being brought against them or (2) assist their lawyer in the preparation of their defense. If either is established, trial is postponed until the defendant regains competency.

Question 14

Intoxication Generally

Answer 14

Intoxication may be caused by any substance and may be raised whenever intoxication negates one of the elements of the crime.

The law distinguishes between voluntary and involuntary intoxication.

Question 15

Voluntary Intoxication

Answer 15

Intoxication is voluntary if it is the result of intentional taking without duress of a substance known to be intoxicating.

Evidence of voluntary intoxication may be offered by the defendant only if the crime requires purpose (intent) or knowledge, and the intoxication prevented the defendant from formulating the purpose or knowledge

Therefore, voluntary intoxication is only a defense to specific intent crimes (not general intent, malice, or strict liability)

Question 16

GA Voluntary Intoxication

Answer 16

In GA, voluntary intoxication is a very limited defense.

Voluntary intoxication is not a defense to any crime unless the defendant can show that the intoxication resulted in more than a temporary alteration of brain function such that the defendant could not for the requisite intent.

NOTE – voluntary intoxication is not available when the crime requires the defendant act knowingly

Question 17

Involuntary Intoxication

Answer 17

Intoxication is involuntary only if it results from taking of intoxicating substances without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advise while unaware of the substance’s intoxicating effect.

Involuntary intoxication may be treated as a mental illness, the the defendant is entitled to acquittal if they meet the jurisdiction’s insanity test.

Therefore, it can be a defense to all crimes.

Question 18

GA Involuntary Intoxication

Answer 18

In GA, involuntary intoxication is a defense if it deprived the defendant of sufficient mental capacity to distinguish between right and wrong in relation to the criminal act.

Question 19

Common Law Infancy

Answer 19

At common law, there could be no liability for an act committed by a child under the age of 7

For acts committed by a child between 7 and 14, there was a rebuttable presumption that the child was unable to understand the wrongfulness of there acts.

Children 14 or older were treated as adults

(Known as the rule of 7s)

Question 20

Modern Infancy

Answer 20

most states have abolished the rule of 7s in whole or in part in favor of separate juvenile or family courts to enforce juvenile delinquency laws and to manage youthful offending in general.

Question 21

GA Infancy

Answer 21

In GA, to be found guilty of a crime, a person must be at least 13 years old at the time of the relevant conduct

Question 22

Mistake of Ignorance of Fact

Answer 22

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

Whether the defendant’s mistake of fact will be a defense depends upon the mental state for the crime and whether the mistake is reasonable.

Question 23

Mental States for Mistake of Fact

Answer 23

– If the mental state is specific intent, any mistake of fact (even unreasonable) will be a defense

– If the mental state is malice or general intent, only a reasonable mistake of fact will be a defense

– If the mental state is strict liability, mistake of face will never be a defense

Question 24

Reasonableness (Mistake of Fact)

Answer 24

A reasonable mistake of fact will be a defense to any crime, except a strict liability crime.

An unreasonable mistake of fact will be a defense only to specific intent crimes

Question 25

GA Mistake of Fact

Answer 25

In GA, a person will not be guilty of a crime if the relevant act or omission is induced by a misapprehension of fact that, if true, would justify the act or omission.

Question 26

Mistake or Ignorance of Law

Answer 26

Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if the 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 27

Exceptions to Mistake of Law

Answer 27

Mistake of Law is 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

3) in some jurisdiction, there was reasonable reliance on official interpretation or advice

Question 28

Mistake of Law may Negate Intent

Answer 28

If the defendant’s mistake of law as to a collateral legal matter proves the defendant lacked the state of mind required by the 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.

Question 29

Self Defense with Nondeadly Force

Answer 29

Individuals without fault may use such force as they reasonably believe is necessary to protect themselves from the imminent use of unlawful force upon themselves. There is no duty to retreat.

Question 30

Self Defense with Deadly Force

Answer 30

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 the they are threatened with imminent death or great bodily harm

Question 31

Right of Aggressor to Use Self Defense

Answer 31

A person may not use force in self defense if they are the initial aggressor (person who started the fight)

HOWEVER, the initial aggressor can regain their right to use force in self defense if:

1) the initial aggressor effectively withdraws from the confrontation and communicates 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 32

Duty to Retreat

Answer 32

Generally, there is no duty to retreat before using deadly force.

The minority requires retreat before using deadly force if the victim can safely do so, unless:
– the attack occurs in the victim’s own home;
–the attack occurs while the victim is making a lawful arrest; or
– the assailant is in the process of robbing the victim

Question 33

GA Duty to Retreat

Answer 33

GA follows the majority – A person has no duty to retreat and has the right to stand their ground when the use of force is authorized

Question 34

Reasonable Mistake (Self Defense)

Answer 34

A reasonable mistake is a complete defense

Question 35

Unreasonable Mistake (Self Defense)

Answer 35

Majority and GA – an unreasonable mistake is no defense at all

Minority and MPC – an unreasonable mistake mitigates but does not exonerate (imperfect self defense doctrine)

Under the imperfect self defense doctrine, the defendant’s unreasonable but honest belief in the need to use deadly force in self defense will mitigate murder to voluntary manslaughter.

Question 36

Use of Force to Prevent a Crime

Answer 36

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 37

Defense of Others

Answer 37

A defendant has a right to defend others if they reasonably believe that the person 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.

Generally, there need be no special relationship between the defendant and the person in whose defense they acted.

Question 38

Defense of a Dwelling

Answer 38

Nondeadly force – may be used in defense of a 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

Deadly Force – may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack, or to prevent an entry to commit a felony in the dwelling.

Question 39

Defense of Possessions

Answer 39

Deadly force may never be used in defense to property.

Reasonable non deadly force may be used to defend a person’s possessions 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 40

Regaining Possession

Answer 40

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 41

GA Defense to Property

Answer 41

Nondeadly force is justified to the extent it is reasonably believed to be necessary to prevent or terminate a trespass on or wrongful interference with real property (other than a dwelling) or with personal property (other than a vehicle), provided the property is:
1) lawfully in the defendant’s possession;
2) lawfully in the possession of a member of the defendant’s immediate family; or
3) belonging to someone whose property the defendant has a legal duty to protect

Deadly force is not justified unless the defendant reasonably believes that it is necessary to prevent a commission of a forcible felony against a person.

Question 42

Use of Force to Effectuate Arrest – Police Officers

Answer 42

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 officer reasonably believes that the felon threatens death or serious bodily harm.

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

Question 43

Use of Force to Effectuate Arrest – Private Persons

Answer 43

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 non deadly 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

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 44

Resisting Arrest

Answer 44

Majority holds that non deadly force may be used to resist an improper arrest eve if a known officer is making the arrest (not followed by minority or MPC)

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

Question 45

Necessity

Answer 45

Conduct that is otherwise criminal is justified if the defendant reasonably believed that the conduct was necessary to prevent a greater harm.

This is an objective test - good faith belief is not sufficient

Question 46

Limitations to Necessity

Answer 46

the defense of necessity is unavailable if

1) the defendant causes the death of another person to protect property; or

2) the defendant is at fault in creating the situation requiring a choice of evils

Question 47

Duress

Answer 47

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

Question 48

Duress Limitation

Answer 48

The majority and GA hold that duress cannot be a defense to intentional homicide

(kill your friend or I will kill you)

Question 49

Threats to Property (Duress)

Answer 49

Traditionally, threats to property were not sufficient

MPC and number of states allows for threat to property to give rise to a duress defense, assuming the value of the property outweighs the harm done to society by commission of the crime.

Question 50

Entrapment

Answer 50

If a defendant believes the government unfairly tempted them to commit a crime, they may claim entrapment.

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

Question 51

Majority Entrapment Test (Subjective)

Answer 51

To prevail on the defense of entrapment, the defendant must prove the following:
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

Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.

Question 52

Minority Entrapment Test (Objective)

Answer 52

The defendant must prove that police activity was reasonably likely to cause an innocent person to commit the crime in question.

The predisposition of the defendant is irrelevant.

Question 53

GA Entrapment

Answer 53

In GA, a person is not guilty of a crime if their conduct is induced or solicited by a government officer, employee, or agent for the purpose of obtaining evidence to be used in prosecuting the person in the commission of the crime.

Entrapment exists where the idea and intention to commit the crime originated with the government officer or agent who, by undue persuasion or deceit, induced the defendant to commit the act, which they would not have committed except for the conduct of the officer.

In addition, the defendant must not have been predisposed to commit the crime.

Question 54

What is Not Entrapment

Answer 54

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, even if the material provided was contraband.