Defenses

Question 1

Defenses: capacity and other

Answer 1

CAPACITY: insanity, incomptetency voluntary intoxication, involuntary intoxication, infancy
OTHERS: mistake of fact or law, justification (self defense, defense of others, use of forse to prevent a crime, defense of property, resisting arrest, domestic authority, other necessity), duress, consent, entrapment,

Question 2

Insanity tests

Answer 2

1. the first requirement for the insanity is that the ∆ must have a mental disease or defect.
2. Two major tests

a. Majority: M’naghten test—purely cognitive. basically the ∆ cannot appreciate criminality
i. ∆ must prove either he
1. didn’t know conduct was wrong or
2. does not understand his actions

b. MPC test—cognitive or volitional more generous to ∆ (combination of M’naghten and irresistible impulse)
i. ∆ must establish either he lacked substantial capacity to EITHER
1. appreciate criminality (didn’t know it was wrong or doesn’t understand actions, i.e. mcnaughten) OR
2. conform his conduct to requirements of law (volitional)
a. for ex. he couldn’t conform his conduct bc he was driven by delusions for love of Jodie foster

c. Other less common tests
i. Irresistible impulse test – bc of mental illness ∆ was unable to control his acts or conform to the law
ii. Durham or new Hampshire test—Crime was the product of his mental illness (i.e. mental illness was but for cause of the crime). Broader than M’Naghten or irresistible interest)

Question 3

Insanity procedure. Presumption of sanity and mandatory psychiatrist exams

Answer 3

all ∆s are presumed sane, up to ∆ to raise insanity.

i. Most states—up to ∆ to prove insanity usually by a preponderance
ii. Minority/ MPC—Prosecution has burden to prove ∆’s sanity beyond a reasonable doubt
iii. Fed cts– ∆ must prove insanity by clear and convincing evidence.
iv. If you raise the insanity issue—may not refuse psychiatrist examination
1. but if you don’t raise it, you may refuse the psychiatrist exam

Question 4

Post acquittal commitment to mental institutions

Answer 4

most jdxns require ∆s acquitted for insanity to be committed to a mental institution until cured. Confinement may be longer than the statutory maximum

Question 5

Diminished capacity

Answer 5

i. some states recognize the defense that while the ∆ may have a mental defect short of insanity, but don’t have the mental state required for the crime charged.
1. usually limited to specific intent crimes.

Question 6

Insanity vs. incompetency

Answer 6

1. for incompetencey the issue is whether at the time of the TRIAL the ∆ cannot either
   a. understand nature of proceedings against him OR
   b. assit lawyer in preparing defense
   c. (insanity has to do with mental state at time of crime)
2. if either element is established, trial is postponed until the ∆ regains competency.

Question 7

Voluntary intoxication

Answer 7

(self induced) commonly tested
1. CL approach
a. CAN be a defense to specific intent crimes only
(but if only drinking to build up courage– you still have specific intent to do the act)
b. CANNOT be a defense to malice, general intent or SL crimes
c. Requires SEVERE prostration of faculties so ∆ cant form the requisite specific intent. boatload of liquor
2. Relation to insanity—continuous, excessive drinking may bring on actual insanity. if so, may be able to claim both intoxication and insanity defense.

Question 8

Involuntary intoxication

Answer 8

3 ways if ∆ took a substance

1. without knowledge of its nature
2. under duress
3. pursuant to medical advice without knowing of the intoxicating effect.
4. must meet jdxn’s insanity test.

Question 9

Infancy

Answer 9

– not common at all on UBE

1. Common law (rule of sevens)
   a. if at time of crime, the ∆ is < 7 y/o cant prosecute
   b. if at time of crime, the ∆ is < 14, rebuttable presumption against prosecution
   c. if at time of crime , ∆ age is > 14, prosecution is allowed

Question 10

Mistake of fact

Answer 10

a. CL approach: whether a ∆’s mistake of fact will be a defense depends on mental state for the crime and reasonableness of the mistake
i. If mental state for crime is
1. specific intent, any mistake of fact even unreasonable one works as defense
2. malice or general intent, only a reasonable mistake of fact will be a defense
3. SL, mistake of fact is never a defense
ii. i.e reasonable mistake is a defense any crime other than SL
iii. unreasonable mistake is only defense for specific intent
1. (volunaty intoxication and unreasonable mistake are unique defenses to specific intent)

Question 11

Mistake of law

Answer 11

a. CL: mistake of law is generally not a defense

i. exception: if the statute specifically makes knowledge of the law an element of the crime

Question 12

Self defense steps

Answer 12

2. Rule for use of nondeadly force: individual may use in self defense if he is without fault and
   a. reasonably believes that doing so is necessary
   b. to protect himself from the imminent use
   c. of unlawful force upon himself
3. Rule for use of deadly force: can use in self defense only if confronted with unlawful force, is without fault, and reasonably believes he is facing an imminent threat of death or serious bodily harm.

Question 13

Two complications for use of force in self defense: initial aggressor rule and retreat rule

Answer 13

a. initial aggressor rule: cannot use the defense of self-defense if he is the initial aggressor. BUT can regain right to use of force in self defense if
i. He withdraws from fight and communicates withdrawal to the other person or
ii. victim suddenly escalates a nondeadly fight into a deadly one

b. The retreat rule:
i. Majority rule: retreat is not required.
ii. Minority/ MPC rule: retreat is required before ∆ can use self defense unless cannot retreat safely or ∆ is in his home,

Question 14

Reasonableness and mistake w/r/t the need of self defense

Answer 14

5. reasonableness and mistake, what happens if ∆ is mistaken about need to use unlawful force in self defense
   a. reasonable mistake: complete defense
   b. unreasonable mistake:
   i. majority rule: no defense at all
   ii. Minority/ MPC rule: mitigates but doesn’t exonerate
6. Imperfect self defense: unreasonable belief in need to use deadly force in self defense will mitigate murder to voluntary

Question 15

Use of force to prevent a crime

Answer 15

a. Nondeadly force may be used, if reasonably necessary to prevent any serious breach of the peace
b. Deadly force may only be used to prevent a felony risking human life
i. Like robber fleeing with knife or gun in hand.

Question 16

Defense of others

Answer 16

same rules as self defense

Question 17

Defense of property

Answer 17

a. deadly force may not be used to defend property

Question 18

Resisting arrest

Answer 18

a. majority– Nondeadly force may be used to resist an improper arrest even if police officer is making that arrests
b. minority/ MPC—not allowed to use force to resist known police officer
c. Deadly force can be used only if person doesn’t know that the person arresting him is a police officer

Question 19

Domestic authority

Answer 19

the parents of a minor child or any person “in loco parentis” w/r/t that child may lawfully use reasonable force upon the child for promoting that child’s welfare

Question 20

Use of deadly force by law enforcement

Answer 20

intersection of crim pro

a. officer may use deadly force only when doing so is reasonable under the circumstances
i. compare unreasonableness
1. shooting a fleeing burglar disobeying an order to halt bc no probable cause to believe suspect was armed or posed an immediate physical threat
2. reasonable to bump the rear of a car causing crash bc car was creating risk of harm
b. bystander recruited by cop has same limits as cop

Question 21

Necessity (all other justifications)

Answer 21

1. Rule : conduct that is otherwise criminal is justifiable if the ∆ reasonably believed the conduct was necessary to prevent a greater harm
   a. policy justification: society is happy he did it. redirecting fire to an empty warehouse
2. Limitations: defense unavailable if
   a. ∆ causes the death of another to protect property
   b. or ∆ is at fault creating a situation creating a choice of evils

Question 22

Duress

Answer 22

1. Rule: defense to criminal conduct if ∆ was coerced to commit a crime from ANOTHER PERSON (not nature) of imminent death or serious bodily injury to himself for close family member
2. Limitation: duress not a defense to intentional homicide
   a. bc if you have duress situation, and someone ends up dead, that person is almost always an innocent victim.
   i. jdxns find this morally troubling, don’t want to extend the defense.
   ii. instead leave it up to prosecutorial discretion or a plea.

Question 23

Consent

Answer 23

unless the crime requires lack of consent of a victim, consent is usually NOT a defense.

1. consent is a defense to minor assaults or batteries if there’s no danger of serious bodily injury.
2. if consent is used as a defense, must show
   a. consent was voluntarily and freely given
   b. party was legally capable of consenting
   c. no fraud involved in obtaining defense

Question 24

Condonation or criminality of victim

Answer 24

not a defense

1. forgiveness by V not a defense.
2. Illegal crime by V is not a defense.

Question 25

Entrapment

Answer 25

(very narrow defense)

1. if a ∆ believes government unfairly tempted him to commit a crime, he may claim entrapment
   a. Majority test (subjective)—to prevail ∆ must prove
   i. criminal design originated with the government AND
   ii. he was not predisposed to commit the crime
   b. minority test (objective and better for ∆) – to prevail the ∆ must prove that police activity was reasonably likely to cause an innocent person to commit the crime in question
   i. the predisposition of ∆ is irrelevant.