Defenses Flashcards
2 Major Types of Defenses (review)
- affirmative defenses
-justification: act
-excuses: actor - failure of proof defenses (negates 1 of the elements prosecution must prove)
Structure of Affirmative defenses (review)
- adequate triggering condition
- necessity requirement
- proportionality requirement
C/L self defense for homicide requirements (review)
- threat of death or GBH
- unlawful or immediate
- honest and reasonable believe that threat is necessary and proportional
What kind of defense is SD? (review)
affirmative justification defense
Majority Rule on SD (review)
D can stand ground and doesn’t need to retreat
Does an aggressor have the defense of SD? ( review)
No, unless fully and completely withdrawals or V escalates force
Castle Doctrine under SD (review)
no need to retreat in own home
What is proportional force? (review)
Non-deadly force may be used to repel non-deadly force.
Deadly force may be used to repel deadly force.
Deadly force may NOT be used to repel non-deadly force.
Under C/L, what is needed in order to exercise SD? (review)
needs to be both honest and reasonable (general intent)
consider evaluating relevant circumstances (physical attributes, prior experiences)
Does transferred intent apply to SD? (review)
YES
Standard for Reasonable Appearance under SD for intervenor (review)
intervenor is justified in using force to extent that such force rsnbly appeals to intervenor to be justified in defense of 3rd party
Alter ego standard under SD for intervenor(review)
intervenor steps into shoes of 3rd party; steps in to defend if D party were to use force in same degree
Necessity defense (review)
affirmative justification
-harm avoided must be greater
-focuses on act
Duress (review)
affirmative excuse
-focuses on actor
-harm does NOT need to be greater
Voluntary intoxication (review)
failure of proof defense
-negates element of mens rea
-can be used as a defense for specific intent crimes
Incompetence v. Insanity (review)
1.incompetence-mental status at time of trial
2. insanity-relates to mens rea at time of offense
What does the insanity defense include under the MPC? (review)
cognitive and volitional prongs
what does the insanity defense include under the Federal Test? (review)
only cognitive prong
For insanity, who is the burden of proof on under the MPC? (review)
the GOV
For insanity, under the Fed. Stat. Test, what is the burden of proof? (review)
must prove insanity by clear and convincing evidence
Under Inchoate offenses, what is the mens rea for a criminal attempt? (review)
specific intent to commit offense attempted
actus reus: overt act
What is the MPC test for an overt act? (review)
Substantial Step Test
-overt act that is firmly cooberative of D’s crim. intent
What is the impossibility defense to criminal attempt? (review)
Legal impossibility
not hybrid or factual
When can you have the defense of abandonment? (review)
when voluntary and complete
What are the requirements for conspiracy under the C/L? (review)
-agreement by 2 or more
-overt act in furtherance of conspiracy
Affirmative defense
-defense theory that negates guilt even if all elements proven
-justification: D’s actions were correct
-actor’s conduct benefits society
-harm outweighed/negated by avoiding greater harm
-focus on the ACT, not actor
Excuse Defense
-conduct need NOT benefit society
-actor not responsible/blameworthy
-not meaningfully done
Failure of Proof Defenses (not affirmative)
-negating elements
-mistake, voluntary intox.
Justification defenses
all justification defenses have:
1. triggering conditions
2. permit a necessary and proportional response
Necessity requirement
one may act only when and to the extent necessary to protect or further interest
Proportionality requirement
limits harm that may be caused to protect/further an interest
What kind of a defense is Self defense?
a justification defense
-the act must be in self preservation
C/L Self Defense (imminence)
- actual or apparent threat of deadly force/bodily harm against defender
- threat must be unlawful and immediate
- defender must honestly believe in immediate peril of death/serious bodily harm AND response is necessary to save self
- must be objectively rsnbl
if back turned, then it is not imminent until actual harmed, so can’t use SD
Aggressor
one who:
1. provokes conflict
2. precipitates altercation
3. not free from fault
4. incites fatal attack/encourages quarrel/otherwise promotes
5. commits affirmative unlawful act rsnbly calculated to produce the quarrel
Who cannot use Self Defense?
the aggressor and those at fault
Self Defense (MPC)
requires person claiming to comply w/ demand to avoid quarrel before SD can be asserted
Can an aggressor regain right to SD?
yes, only if withdrawals in good faith and tells other party
Escalation of Force
can defend against non-lethal with non-lethal
once one party exercises excessive force, the other party can exercise excessive force under SD
Duty to Retreat (C/L)
some states have stand your ground laws
retreat rule-retreat if possible before use of SD
no retreat rule-can use SD w/out retreat
Under the MPC, can’t use deadly force w/out retreat
justification defenses
focus on act; good not bad
excuses defenses
focus on actor; bad but because of the circumstances of actor, is less morally culpable
-affirmative defenses-burden of proof on D
-actor’s conduct need NOT benefit society
-type is unlawful
Duress (C/L)
NOT AN EXCUSE FOR MURDER
- another threatened to kill or greviously injure the actor or another, particularly near relative, unless actor committed the crime
- actor rnsbly believed the threat was genuine
- threat was present, imminent, and impending at the time of the criminal act
- there was no rsnbl escape from the threat except through compliance w/ demands of the coercer
- actor not at fault in exposing the threat
source of threat-another person
Duress (MPC)
- actor compelled to commit the offense by the use, or threatened use of unlawful force by the coercer upon him or another person
- a person of rsnbl firmness in his situation would have been unable to resist
- unavailable to one who recklessly places himself in a situation where coercion is likely
- MPC is broader than C/L:
-no imminence
-no severity of threat
What evidence can duress be raised on?
prosecution evidence
SD C/L v. MPC
C/L: imminence requirement (threat is immediate)
MPC: permits use of deadly force if “immediately necessary” on the “present occassion” (more lenient)
Battered women syndrome-testimony
Necessity v. Duress
necessity: justification defense-free will properly exercised to achieve a greater good or lesser evil
duress: an excuse defense-actor’s free will is overcome by an outside force
Triggering conditions:
-necessity caused by natural and human forces
-duress caused by human forces only
Under C/L is duress a defense to intentional killing?
NO
Failure of proof defenses
-mistake of fact
-voluntary intoxication
Voluntary intoxication
-failure of poof defense
-NOT defense for G.I. crimes
Voluntary C/L v. MPC
C/L-intoxicant taken w/ actor’s knowledge w/o force or fraud
MPC-knows or ought to know
Intoxication C/L v. MPC
C/L-state of mental confusion, excluding the possibility of specific intent
MPC-disturbance of mental or phys. capacities
Mens Rea for Voluntary Intoxication
C/L-negates S.I and knowledge
MPC-negates purposely and knowingly
*vol intoxication is not a defense to GI but is for SI
*rape is a GI offense
*attempted rate is an SI offense
Involuntary intoxication elements
-excuse defense
-actor lacks free will/volition to choose and cognition
- coerced intoxication
- by innocent mistake
- unexpected from prescribed medicine (actor does not know or have reason to know)
- pathological intoxication
Insanity (aff. defense at trial)
-D carries burden of proof
-excuse defense
-competency: concerns mental state at trial
-sanity: mental state at time of crime
-incompetence can be temporary or permanent
incompetent D not allowed at trial
Procedures for Insanity
-D presumed to be competent, has burden of proving incompetence
D’s competency can be raised by either party
-question of law: decided by judge
-D is required to submit to a psychiatric examination if competency is raised
-hearing may be conducted if facts disputed
-crim. proceedings suspended until D competent under temporary incompetence; if permanent, trial will never occur
-a pretrial notice to provide intent of insanity is required
-if found insane, D could be committed to psych. facility after prison sentence
sexual predators NOT found insane
Utilitarian Theory for insanity
punishing insane is pointless and counterproductive
Retributive theory for insanity
punishment undeserved because lacks rational free will
Tests for determining Insanity
- McNaghten Rule
- Irresistible Impulse Test
- Product Durham Rule Test
- MPC Test
- Fed. Statutory Definition Test
McNaghten Rule for Insanity
a person is insane if at the time of the act, he was laboring under such a defect of reason
1. does not know nature of quality
2. does not know difference of right v. wrong
Irresistible Impulse Test for Insanity
-irresistible and uncontrollable impulse
-lost power to choose
-beyond his control
Product Durham Rule Test for Insanity
-excused if product of a mental disease/defect
-jury determines “but-for” condition
MPC Test for Insanity
-result of mental disease or defect
-lacked substantial capacity
-cognitive prong: unable to appreciate criminality or wrongfulness of his conduct; or to conform his conduct
Fed. Statutory Definition Test for Insanity
-proves clear/convincing evidence that at time of offense, unable to appreciate
1. nature/quality of conduct; or
2. wrongful conduct
-has to be severe mental disease or defect
has cognitive prong but tougher standard than MPC
