Defenses

Question 1

Intoxication

Answer 1

Two questions: was it voluntary/involuntary and is the charged crime a specific intent crime or general intent crime?

Specific Intent Crime - can use either voluntary or involuntary intoxication as a defense if the D could not maintin the state of mind necssary for the offense

General Intent Crime - can use only involuntary intoxication as a defense

Ohio - no voluntary intoxication defense,

Question 2

Burden of Proof

Answer 2

Multistate - burden of proof for affirmative defenses is that D bears the intial burden of raising the defense and then the burden of persusasion shifts to the prosecutor

Ohio - D bears the burden of proof for all affirmative defenses by a preponderance of the evidence

Question 3

Insanity

Answer 3

Involves a defendant who, because of a mental disease or defect, is unable to conform his conduct to the law

1. M’Naghten - D either did not know the nature of the act or did not know that the act was wrong
2. Irresistible Impulse - D has a mental disease or defect that meas the D cannot control himself
3. Durham Rule - D would not have committed the crime but for his having a mental disease or defect (very D freindly)
4. MPC - due to a mental disease or defect, the D did not have substantial capacity to appreciate the wrongfulness of his acts or to conform his conduct to the law

OHIO - Partial M’Naughten test - because of a mental disease or defect, did not know that the act was wrong

Question 4

Mistake of Fact

Answer 4

What is the intent required for the crime?

Specific Intent - all mistakes of fact are potential defenses, even unreasonble mistakes

General Intent - only reasonble mistakes of fact may be used as a defense

Question 5

Self-Defense

Answer 5

Nondeadly Force - inovlves force that is not likely to cause death or seriousd injury (pushing one another, locking a door)

Response - may be used anytime a victim reasonably fears an imminent unlwaful harm

Deadly Force - intended or likely to cause death or serious injury

Response - a victim is enttiteld to use deadly force only if he reasonbly believes that deadly force will be used against him

MPC - victim can use deadly force if he reasonbly believs that the crim involved could result in serious bodily injury

Ohio - generally same; if merely engaging in unlawful activity that did not create aggressive conduct, then not precluded from claiming self-d;

Rebuttable Presumption when Defending Home or Vehicle - if D uses force against someone who is unlawfully entering or has entered a residnece/vehicle where the D is present, then D gets a rebuttable presumption of self-d; preponderance of the evidence

Note - does not apply if deadly force used against someone who has right to be in or is a lawful resident of the residence or vehicle

Retreat -

Majority - not required to retreat

Minority - must retreat if safe to do so, rather than using deadly force

Note - even in minority, no requirement when in home

Ohio - does not allow a person to use deadly force in self defense if he has avaialbe a reasonable means of retreat from the confrontation BUT no duty to retreat from your home or place of business

Battered Women Syndrome - expert testimony evidence of syndrome to be introduced to show that the person suffered from the syndrome and had the belief that the she was in imminent danger of great bodily harm

Question 6

Defense of Others

Answer 6

An individual has the same right to defend other individuals against a criminal that she has to defend herself

Question 7

Defense of Property

Answer 7

Right to use only non-deadly force to protect property; cannot use deadly force

Question 8

Duress

Answer 8

D claimes he only committed ac rime because he was threatened by a third party and reasonbly believed that the only way to avoid death or injury to himself or others was to commit the crime

Note - death or seriousd bodily harm must be threatened ; mere threat of injury to property is not sufficient

Defense for all crimes except intentional murder

Question 9

Necessity

Answer 9

Available in response to natural forces (lesser of two evils)

Ex: breaking into neighbor house for water when dying of thirst after katrina

Question 10

Unlawful Arrest + Entrapment

Answer 10

Unlawful Arrest - D may use non-deadly force to resist an unlawful arrest

Ohio - person may not resist arest, even if arrest is illegal, if the person knows an authorized police officer is making the arrest

Entrapment

Subjective Approach - courts focus on the D and whether or not he was predisposed to commit the crime

Objective Approach - courts focus on the government’s action and the effect it would have on a reasonble person

OHIO - subjective - entrapment occurs when the crime is enduced by a government official and the defendant was not predisposed (ready and willing) to commit the crime)