Defenses Flashcards
Types of Defenses
Capacity – Defenses Negating Criminal Capacity
- Insanity
- Diminished Capacity
- Intoxication
- Voluntary
- Involuntary
- Infancy
Justification / Necessity Defenses
- Defense
- Self-Defense
- Defense of Others
- Defense of Dwelling
- Defense of Property
- Crime Prevention
- Arrest
- Resisting Arrest
- Necessity (Choice of Evils)
Exculpatory Defenses
- Duress
- Mistake of Fact
- Mistake of Law
- Consent
- Entrapment
Capacity Defenses
Defenses Negating Criminal Capacity
- Insanity
- Diminished Capacity
- Intoxication
- Voluntary
- Involuntary
- Infancy
_________________________________________
Insanity
Tests
- (1) M’Naghten — doesn’t know right from wrong, or understand his actions
- (2) Irresistible Impulse — due to a mental illness, D was unable to control his actions, or conform his conduct to the law
- (3) MPC — combo of M’Naghten & Irresistible Impulse
- (4) Durham / NH — but for the mental illness, D wouldn’t have done the act
Applicable Crimes
- Defense to All Crimes
- regardless of the intent required
_________________________________________
Diminished Capacity
Elements
- (1) as a result of Mental Defect short of insanity,
- (2) D did not have the required mental state to commit the crime
Applicable Crimes
- Maj (that allow) — limited to Specific Intent
- Min (that allow) — allow for Specific & General Intent
_________________________________________
INTOXICATION
Can be caused by any substance (e.g., drugs, alcohol, medicine)
Can be raised whenever intoxication negates one of the elements of the crime
Voluntary
Elements
- (1) voluntary and intentional taking of a substance
- (2) known to be intoxicating
- Alcoholics and Addicts
- if intoxicated — always considered voluntarily intoxicated
- Liquid Courage
- not available if D becomes intoxicated in order to commit the crime
Applicable Crimes
-
Specific Intent — only if intoxication prevents formation of required intent
- Purpose (Intent), Knowledge,
- intoxication prevented D from formulating the purpose or obtaining the knowledge
- Purpose (Intent), Knowledge,
-
Recklessness — sometimes
- Not available / D acts recklessly if
- D would have been aware of the risk had he not been intoxicated
- Not available / D acts recklessly if
-
No Defense to
- General Intent
- Malice
- Strict Liability
- 2nd Degree Murder
- bcas includes CL (malice) murder
Involuntary
Elements
- (1) taking of intoxicating substance
- (2) either
- (a) without knowledge of its intoxicating nature
- (b) under duress
- (c) pursuant to medical advice while unaware of its intoxicating effect
Applicable Crimes
- Treated as Mental Illness
- Defense to All Crimes
- D is acquitted if meets Jxd’s insanity test
- Relationship to Insanity
- Continuous, excessive drinking / drug use may bring on actual insanity
- D may be able to claim both an Intoxication & Insanity defense
_________________________________________
Infancy
Elements
- CL — D is Under 14
- Modern Statutes — Under 13 or 14
Applicable Crimes
- CL
- Under 7 — absolute defense to all crimes
- Under 14 — rebuttable presumption of defense
- Modern Statutes
- Defense to adult crimes
- but may still be delinquent — juvenile / family court
Intoxication
Can be caused by any substance (e.g., drugs, alcohol, medicine)
Can be raised whenever intoxication negates one of the elements of the crime (capacity defense)
Voluntary
Elements
- (1) voluntary and intentional taking of a substance
- (2) known to be intoxicating
- Alcoholics and Addicts
- if intoxicated — always considered voluntarily intoxicated
- Liquid Courage
- not available if D becomes intoxicated in order to commit the crime
Applicable Crimes
-
Specific Intent — only if intoxication prevents formation of required intent
- Purpose (Intent), Knowledge,
- intoxication prevented D from formulating the purpose or obtaining the knowledge
- Purpose (Intent), Knowledge,
-
Recklessness — sometimes
- Not available / D acts recklessly if
- D would have been aware of the risk had he not been intoxicated
- Not available / D acts recklessly if
-
No Defense to
- General Intent
- Malice
- Strict Liability
- 2nd Degree Murder
- bcas includes CL (malice) murder
Involuntary
Elements
- (1) taking of intoxicating substance
- (2) either
- (a) without knowledge of its intoxicating nature
- (b) under duress
- (c) pursuant to medical advice while unaware of its intoxicating effect
Applicable Crimes
- Treated as Mental Illness
- Defense to All Crimes
- D is acquitted if meets Jxd’s insanity test
- Relationship to Insanity
- Continuous, excessive drinking / drug use may bring on actual insanity
- D may be able to claim both an Intoxication & Insanity defense
_________________________________________
Insanity
Tests
- (1) M’Naghten — doesn’t know right from wrong, or understand his actions
- (2) Irresistible Impulse — due to a mental illness, D was unable to control his actions, or conform his conduct to the law
- (3) MPC — combo of M’Naghten & Irresistible Impulse
- (4) Durham / NH — but for the mental illness, D wouldn’t have done the act
Applicable Crimes
- Defense to All Crimes
- regardless of the intent required
_________________________________________
Diminished Capacity
Elements
- (1) as a result of Mental Defect short of insanity,
- (2) D did not have the required mental state to commit the crime
Applicable Crimes
- Maj (that allow) — limited to Specific Intent
- Min (that allow) — allow for Specific & General Intent
_________________________________________
Infancy
Elements
- CL — D is Under 14
- Modern Statutes — Under 13 or 14
Applicable Crimes
- CL
- Under 7 — absolute defense to all crimes
- Under 14 — rebuttable presumption of defense
- Modern Statutes
- Defense to adult crimes
- but may still be delinquent — juvenile / family court
Infancy
Infancy
Elements
- CL — D is Under 14
- Modern Statutes — Under 13 or 14
Applicable Crimes
- CL
- Under 7 — absolute defense to all crimes
- Under 14 — rebuttable presumption of defense
- Modern Statutes
- Defense to adult crimes
- but may still be delinquent — juvenile / family court
_________________________________________
Defenses Negating Criminal Capacity
- Insanity
- Diminished Capacity
- Intoxication
- Voluntary
- Involuntary
- Infancy
_________________________________________
Insanity
Tests
- (1) M’Naghten — doesn’t know right from wrong, or understand his actions
- (2) Irresistible Impulse — due to a mental illness, D was unable to control his actions, or conform his conduct to the law
- (3) MPC — combo of M’Naghten & Irresistible Impulse
- (4) Durham / NH — but for the mental illness, D wouldn’t have done the act
Applicable Crimes
- Defense to All Crimes
- regardless of the intent required
_________________________________________
Diminished Capacity
Elements
- (1) as a result of Mental Defect short of insanity,
- (2) D did not have the required mental state to commit the crime
Applicable Crimes
- Maj (that allow) — limited to Specific Intent
- Min (that allow) — allow for Specific & General Intent
_________________________________________
INTOXICATION
Can be caused by any substance (e.g., drugs, alcohol, medicine)
Can be raised whenever intoxication negates one of the elements of the crime
Voluntary
Elements
- (1) voluntary and intentional taking of a substance
- (2) known to be intoxicating
- Alcoholics and Addicts
- if intoxicated — always considered voluntarily intoxicated
- Liquid Courage
- not available if D becomes intoxicated in order to commit the crime
Applicable Crimes
-
Specific Intent — only if intoxication prevents formation of required intent
- Purpose (Intent), Knowledge,
- intoxication prevented D from formulating the purpose or obtaining the knowledge
- Purpose (Intent), Knowledge,
-
Recklessness — sometimes
- Not available / D acts recklessly if
- D would have been aware of the risk had he not been intoxicated
- Not available / D acts recklessly if
-
No Defense to
- General Intent
- Malice
- Strict Liability
- 2nd Degree Murder
- bcas includes CL (malice) murder
Involuntary
Elements
- (1) taking of intoxicating substance
- (2) either
- (a) without knowledge of its intoxicating nature
- (b) under duress
- (c) pursuant to medical advice while unaware of its intoxicating effect
Applicable Crimes
- Treated as Mental Illness
- Defense to All Crimes
- D is acquitted if meets Jxd’s insanity test
- Relationship to Insanity
- Continuous, excessive drinking / drug use may bring on actual insanity
- D may be able to claim both an Intoxication & Insanity defense
Dimished Capacity
Elements
- (1) as a result of Mental Defect short of insanity,
- (2) D did not have the required mental state to commit the crime
Applicable Crimes
- Maj (that allow) — limited to Specific Intent
- Min (that allow) — allow for Specific & General Intent
_________________________________________
Defenses Negating Criminal Capacity
- Insanity
- Diminished Capacity
- Intoxication
- Voluntary
- Involuntary
- Infancy
_________________________________________
Insanity
Tests
- (1) M’Naghten — doesn’t know right from wrong, or understand his actions
- (2) Irresistible Impulse — due to a mental illness, D was unable to control his actions, or conform his conduct to the law
- (3) MPC — combo of M’Naghten & Irresistible Impulse
- (4) Durham / NH — but for the mental illness, D wouldn’t have done the act
Applicable Crimes
- Defense to All Crimes
- regardless of the intent required
_________________________________________
INTOXICATION
Can be caused by any substance (e.g., drugs, alcohol, medicine)
Can be raised whenever intoxication negates one of the elements of the crime
Voluntary
Elements
- (1) voluntary and intentional taking of a substance
- (2) known to be intoxicating
- Alcoholics and Addicts
- if intoxicated — always considered voluntarily intoxicated
- Liquid Courage
- not available if D becomes intoxicated in order to commit the crime
Applicable Crimes
-
Specific Intent — only if intoxication prevents formation of required intent
- Purpose (Intent), Knowledge,
- intoxication prevented D from formulating the purpose or obtaining the knowledge
- Purpose (Intent), Knowledge,
-
Recklessness — sometimes
- Not available / D acts recklessly if
- D would have been aware of the risk had he not been intoxicated
- Not available / D acts recklessly if
-
No Defense to
- General Intent
- Malice
- Strict Liability
- 2nd Degree Murder
- bcas includes CL (malice) murder
Involuntary
Elements
- (1) taking of intoxicating substance
- (2) either
- (a) without knowledge of its intoxicating nature
- (b) under duress
- (c) pursuant to medical advice while unaware of its intoxicating effect
Applicable Crimes
- Treated as Mental Illness
- Defense to All Crimes
- D is acquitted if meets Jxd’s insanity test
- Relationship to Insanity
- Continuous, excessive drinking / drug use may bring on actual insanity
- D may be able to claim both an Intoxication & Insanity defense
_________________________________________
Infancy
Elements
- CL — D is Under 14
- Modern Statutes — Under 13 or 14
Applicable Crimes
- CL
- Under 7 — absolute defense to all crimes
- Under 14 — rebuttable presumption of defense
- Modern Statutes
- Defense to adult crimes
- but may still be delinquent — juvenile / family court
Insanity
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
M’Naghten Rule
Right-Wrong
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness are not defenses unless this test is met
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- Control his Actions, or
- Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
(1) Delusions
(2) Belief that one’s actions are Morally Right
(3) Loss of Control
Bcas of Mental Illness – are not defenses
Unless this test is met
M’Naghten (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- Control his Actions, or
- Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
MPC Approach
(Insanity)
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- Control his Actions, or
- Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
Durham (NH)
(Products / But For)
The Crime was the Product of Mental Illness
wouldn’t have been committed “but for” the disease
broader than
M’Naghten
Irresistible Impulse
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
___________________________________________
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
Insanity
Procedural Issues
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
All Ds are presumed sane
D must raise the insanity issue
When Must D Raise Defense?
D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense
- (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
Once D Raises Insanity Defense
Who has the Burden of Production
(and by what is the burden of proof)
Maj
- D must Prove his Insanity
- by a Preponderance of the Evidence
Fed Courts
- D must prove Insanity
- by Clear & Convincing evidence
Min / MPC
- Prosecution must prove
- D was Sane Beyond a Reasonable Doubt
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
___________________________________________
DP – Mental Condition During Criminal Proceedings / Execution
DP Clause requirements
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
DP Clause Requirements
Mental Condition During Criminal Proceedings / Execution
Criminal Proceedings
- D can’t be tried, convicted, or sentenced
- if, as a Result of a Mental Disease or Defect
- he is Unable to
- (1) Understand the Nature of the Proceedings being brought against him; or
- (2) Assist his Lawyer in the Preparation of his Defense
Execution
- D can’t be executed
- if Incapable of
- Understanding the Nature & Purpose of the Punishment
Post-Acquittal Commitment to Mental Institution
- Maj
- D acquitted by reason of insanity may be committed to a mental institution until cured
- Confinement may exceed the maximum period of incarceration for the offense charged
___________________________________________
Presumption of Sanity
- All Ds are presumed sane
- D must raise the insanity issue
Timing — when must D raise defense
- D can raise at arraignment when plea is taken
- but a plea of not guilty won’t waive defense (can raise later)
Once D Raises:
- Maj
- D must Prove his Insanity by a Preponderance of the Evidence
- Fed Courts
- D must prove insanity by Clear & Convincing evidence
- Min / MPC
- Prosecution must prove D was Sane Beyond a Reasonable Doubt
Pretrial Psychiatric Examination
- If D doesn’t raise the insanity issue
- can refuse court-ordered psych exam to determine competency to stand trial
- If D raises the insanity issue
- can’t refuse exam by psychiatrist appointed to aid the court in deciding insanity plea
___________________________________________
- M’Naghten
- doesn’t know right from wrong, or
- doesn’t understand his actions
- Irresistible Impulse
- an impulse that D cannot resist
- Durham
- but for the mental illness, D wouldn’t have done the act
- broader than
- M’Naghten
- Irresistible Impulse
- MPC
- combo of M’Naghten & Irresistible Impulse
___________________________________________
M’Naghten Rule (Right-Wrong)
- (1) a Disease of the Mind
- (2) Caused a Defect of Reason
- (3) such that – at the time of his actions
- D Lacked the Ability to either
- (a) Know Right From Wrong, or
- wrongfulness of actions
- (b) Understand the Nature & Quality of his Actions
- (a) Know Right From Wrong, or
Delusions, belief that one’s actions are morally right, or loss of control because of mental illness
are not defenses unless this test is met
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(2) Irresistible Impulse Test
- Due to a Mental Illness
- D was Unable to
- (a) Control his Actions, or
- (b) Conform his Conduct to the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(3) MPC Approach
combination of M’Naghten & Irresistible Impulse
- As a Result of Mental Disease
- D lacked Substantial Capacity to either:
- (1) Appreciate the Criminality of his Conduct, or
- (2) Conform his Conduct to the Requirements of the Law
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
(4) Durham (NH) (Products / But For)
- The Crime was the Product of Mental Illness
- i.e., crime would not have been committed “but for” the disease
Justification / Necessity Defenses
- Defense
- Self-Defense
- Defense of Others
- Defense of Dwelling
- Defense of Property
- Crime Prevention
- Arrest
- Resisting Arrest
- Necessity (Choice of Evils)
Immediacy of Threat
- Right to self-defense or other justification defenses depends on the immediacy of the threat; a threat of future harm is not sufficient.
- Ex — if someone threatens D by saying, “Tomorrow I’m going to kill you,” D is not justified in killing the person to “protect” himself.
Rule of Thumb
- Non-Deadly Force is justified where it appears necessary to avoid imminent injury or to retain property
- Deadly Force is justified only to prevent death or serious bodily injury
___________________________________________
DEFENSE
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
Self-Defense
Non-Deadly Force
- D reasonably believes force is necessary to protect self
- (believes force is about to be used against him)
- No duty to retreat
Deadly Force
- Maj — only if D reasonably believes that he is threatened with (about to face) death or great bodily harm
- (1) is without fault,
- person who has initiated an assault or provoked the other party will be considered the aggressor
- (2) is confronted with unlawful force, and
- attacker must be using unlawful force (i.e., force that constitutes a crime or a tort)
- (3) reasonably believes that he is threatened with imminent death or great bodily harm
- (1) is without fault,
- Min — D has a duty to retreat if safe
- (only apply if Q tells you to)
- Exceptions
- (1) no duty to retreat from one’s home
- (2) if person has been a victim of rape or robbery
- (3) PO (making lawful arrest) has no duty to retreat
If D doesn’t meet test:
Imperfect Self-Defense → Voluntary Manslaughter
D is Initial Aggressor
If D is the (initial) aggressor in the confrontation, he may use self-defense in either of the following situations
- (1) Withdrawal — D aggressor must
- (a) withdraw from the confrontation, and
- (b) communicate to the other his desire to withdraw
- (2) V Escalates Minor Fight & Aggressor Can’t Withdraw
- D may reasonably use deadly force if — V of the initial aggression suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw (V not allowing)
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
Defense of Others
Maj — there doesn’t need to be a special relationship between D and V (person who D used force to protect)
Non-Deadly Force
- D reasonably believes force is necessary to protect the other person
- i.e., reasonably believes other could have used such force in his own defense
Deadly Force
- D reasonably believes that the other is threatened with death or great bodily harm
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
Defense of Dwelling
Non-Deadly Force
- D reasonably believes force is necessary to prevent or end unlawful entry
Deadly Force
- D inside reasonably believes he is threatened or to prevent felony inside
- (but not solely to protect property itself — apply Defense of Property)
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
Defense of Property
- Only Non-Deadly Force allowed
- Never Deadly Force (No Spring Guns)
- D reasonably believes force is necessary to defend property in his possession from unlawful interference
- Interference
- Real Property — entry or trespass
- Personal Property — removal or damage
- Immediacy of Threat
- can’t use force if request to desist would suffice, force not allowed
- Property in One’s Possesion (limited to)
- Force cannot be used to regain possession of property that he reasonably believes was wrongfully taken, unless the person using it is in “immediate pursuit” of the taker
- Interference
___________________________________________
Crime Prevention
Non-Deadly Force
- D reasonably believes force is necessary to prevent felony or serious breach of peace
Deadly Force
- Only to extent D reasonably believes deadly force is necessary to prevent or end felony risking human life
- robbery, arson, burglary of a dwelling, etc.
___________________________________________
To Effectuate Arrest
Police
- Non-Deadly Force
- reasonably believes force is necessary to arrest
- Deadly Force
- Only to prevent escape of felon, and PO reasonably believes that the suspect threatens death or great bodily harm
Private Citizen
- Non-Deadly Force
- crime in fact committed and D has a reasonable belief that this person committed it
- Deadly Force
- Only to prevent escape of suspect who actually committed felony, and D reasonably believes that the suspect threatens death or great bodily harm
Person Acting At Direction of PO
- PO may summon a bystander to assist him in making a lawful arrest
- Has the same authority as PO to use force in making the arrest, and the bystander’s good faith assistance is justified even if it later turns out that PO was exceeding his authority
___________________________________________
Resisting Arrest
Non-Deadly Force
- improper arrest
Deadly Force
- Only if improper arrest and D doesn’t know arrester is a PO
___________________________________________
Necessity (Choice of Evils)
Non-Deadly Force
- Conduct that would otherwise be criminal is justifiable if:
- (1) as a result of pressure from Natural Forces,
- Maj — dropped req
- (cf duress — non-natural force)
- (2) D reasonably believes that his conduct is necessary to avoid a greater societal harm
- (1) as a result of pressure from Natural Forces,
- D at Fault / Caused Situation — Defense Not Available
Deadly Force
- Never
Exculpatory (Excuse) Defenses
- Duress
- Mistake of Fact
- Mistake (or Ignorance) of Law
- Consent
- Entrapment
___________________________________________
Duress
Applicable to
- All Crimes — Except Intentional Homicide
Available When
- D reasonably believed that another would imminently harm him or a family member if he did not commit the crime
___________________________________________
Mistake of Fact
Applicable to
- Crimes with a mental state element (that can be negated)
- Strict Liability — Never a Defense
Available When
- Specific Intent Crimes
- Any mistake that negates intent
- Can even be Unreasonable
- Other Crimes — General Intent & Malice
- Mistake must be Reasonable
- Note — don’t confuse with Impossibility
- Mistake of Fact — is usually raised as a defense to a crime that has been completed.
- Impossibility — arises only when D has failed to complete crime because of mistaken belief about facts, and is charged with attempt;
- factual impossibility is not a defense to attempt.
___________________________________________
Mistake (or Ignorance) of Law
General Rule — No Defense
- No defense that D was unaware that his acts were prohibited by the criminal law or that he mistakenly believed that his acts were not prohibited (even if reasonable)
Negating Intent
- ignorance / mistake must negate awareness of some aspect of law regarding the elements of the crime required
- this situation involves ignorance of some aspect of the elements of a crime rather than the existence of the statute making the act criminal
- Ex — D had his car repossessed by a loan company, and honestly believes he was still the lawful owner entitled to possession. D saw it sitting in a parking space in front of the loan company office and took it. Even if D was wrong about his right to take the automobile, he is not guilty of larceny because he lacked the requisite intent to deprive another of his property.
Exceptions
- mistake due to:
- statute not being reasonably available
- reasonable reliance on statute or judicial interpretation (which is later overturned)
- reasonable reliance on official advice (some states)
- AG, etc.
- Not reasonable reliance on advice of private counsel (unless knowing violation was element of offense)
___________________________________________
Consent
Applicable to
- (1) crimes requiring lack of consent — e.g., rape
- (2) minor assaults & batteries
Available When
- (1) consent is freely given
- (2) party is capable of consenting, and
- (3) no fraud was used to obtain consent
___________________________________________
Entrapment
Applicable to
- Most Crimes
Available When
- (1) criminal design originated with PO, and
- (2) D was not predisposed to commit the crime before contact with PO
- Ask whether D committed same crime in past
Not Available When
- PO merely provided opportunity to commit the crime
- Entrapped / induced by Private Citizen.
- Under Fed law — Based only on fact that Gov agent provided ingredient for commission of the crime (e.g., ingredients for drugs), even if the material provided was contraband.
