Defenses

Question 1

Self Defense (justification)

Answer 1

Need:

1: Honest and reasonable belief
2: Threat must be unlawful and immediate
3: May be actual or apparent
4: Response must be proportional

CL: imminent, or atm (narrow)
MPC: immediate, or looming (More broad, so beyond that present moment)

Question 2

Defense of others (justification)

Answer 2

Majority View MPC:

1: A threat of unlawful force, actual or apparent, against third party;
2: threat imminent
3: force used proportionate to the threat
4: D subjectively believed:
a: third party in imminent peril of harm
b: intervention necessary to prevent the harm;
c: D’s belief objectively reasonable under the circumstances.

Minority View:
Minority View Alter Ego Rule CL:
Def available only if person has right to self-defense

Question 3

Necessity (excuse)

Answer 3

Necessity only permitted in cases where natural threat

Lesser evil analysis: Harm sought to prevent greater than the harm defendant reasonably expects to cause.

1: Must be seeking to prevent imminent harm
2: Reasonable belief
3: Actor is not at fault for creating emergency

Question 4

Duress (excuse)

Answer 4

Duress reserved for coercion by human force.

Duress is a defense if the defendant acts (1) under imminent threat of death or serious bodily harm (2) to himself or another

Question 5

Insanity (excuse)

Answer 5

3 tests we need to know

1: M’Naghten test
A rule that says a defendant is not criminally liable if, by reason of mental disease or defect,
-he does not know the nature and quality of his actions
-or, if he did know it, he did not know his actions were wrong.

2: Irresistible Impulse Test
1: because of a mental disease or defect (scientific proof needed)
2: the defendant was compelled to do a wrongful act by an irresistible impulse. The irresistible impulse must be truly uncontrollable, such that the defendant could not avoid doing it even if a policeman were standing there.
3: Need to know abstractly that its wrong.

3: MPC Test (preferred by Defense)
When as a result of a mental disease or defect, D lacked substantial capacity;
-to appreciate the criminality [wrongfulness] of his conduct
-(alternative test) to conform his conduct to the requirement of the law, as he does not know if conduct is criminal or wrongful conduct

Question 6

Defense of property/Habitation (justification)

Answer 6

1: Right to use deadly force if reasonably believe it is necessary to prevent IMMINENT and UNLAWFUL ENTRY
2: To protect against a felony of violence against the occupants.
3: Proportionality rule relaxed  May permit use of force greater than harm that is threatened

Question 7

Intoxication (failure of proof)

Answer 7

Specific Intent Crimes Only

Can negate the mens rea for specific intent crime. It will provide a jury instruction who will make the determination.

Model Penal Code 2.08 – when recklessness establishes an element of the offense, the reckless act of getting drunk satisfies the recklessness of the crime.

Question 8

Mistake of Fact (failure of proof)

Answer 8

Mistake of Fact
Excuse
– Honest and Reasonable Mistake of Fact is a defense
Failure of proof
– Honest mistake negating mens rea = FOP

Question 9

Mistake of Law (failure of proof)

Answer 9

Mistake of Law – Not a defense
The guilty would use it as an excuse
It would encourage ignorance of the law

Question 10

Effective Withdrawal (offense modifications)

Answer 10

• Clear communication to all co-conspirators in enough time so they can abandon
• Some courts also require the co-consp to successful thwart the consp. - talk them out of it or go to the police.

Question 11

Statute of Limitations (public policy)

Answer 11

Starts to run when conspiracy is over

A conspiracy is over when all of its objectives have been accomplished or it has been abandoned.