Defenses

Question 1

Two categories of defenses

Answer 1

Case in Chief & Affirmative

Question 2

Case in Chief Defense:

what does the D argue?

Answer 2

D attacks the prosecution’s case in chief by arguing that the prosecutor has failed its burden of proof on at least one essential element of the crime

Can attack mens rea, actus reus, causation, or concurrence

D only needs to raise a reasonable doubt as to the existence of one element to secure a complete acquittal

Question 3

Affirmative Defenses:

What does D argue?

Who has burden of proof?

Two types of affirmative defenses?

Answer 3

D admits the state has met its burden of proof regarding the case in chief, but argues that the D nonetheless should be acquitted for some other reason

D bears the burden of proof

Traditionally characterized as either justification defenses or excuse defenses

Two types are Justification and Excuse defenses

Question 4

Justification Defenses in General

What are they?

What do they focus on?

Answer 4

A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case.

Justification focuses on the nature of the conduct under the circumstances.

Question 5

What are the six types of justification defenses

Answer 5

1. Self Defense:
2. Imperfect Self Defense:
3. Defense of Others
4. Defense of Habitation
5. Defense of Property
6. Necessity

Question 6

Common Law

Self Defense Elements and Requirements

Answer 6

Elements:
D must have had an honest and reasonable belief that:

• 1. Imminent threat of unlawful force, AND
• 2. That the force D used was both:

a. Necessary - to repel the threat AND
b. Proportional - to the threat, use of force cannot be excessive in relation to the harm threatened

Three Additional Requirements:

• 1. Imminence requirement
• 2. Necessity requirement
• 3. Proportionality requirement

Question 7

MPC Self Defense

Answer 7

A person is justified in using such force as is immediately necessary to repel or prevent the use of unlawful force against them

D Believes force is immediately necessary to protect himself or others

Belief need not be reasonable (but MPC has a general reasonableness component)

Question 8

MPC Self Defense:

Use of Deadly Force

Answer 8

Deadly force is ok to protect from death, serious bodily injury, forcible rape, kidnapping

Deadly force not ok if you started it with deadly force or you are/become the aggressor

Use of Deadly Force/Retreat: Cannot use deadly force against aggressor if D can avoid by retreating to complete safety

Question 9

Imperfect Self Defense

Definition

Answer 9

D honestly but unreasonably believe that force was necessary but actually was not, no purposeful mens rea

Question 10

Imperfect Self Defense:

Traditional CL

Modern Common Law

MPC

Answer 10

• Traditional CL: if the victim dies, D is convicted of murder
• CL: Offense gets downgraded, honest belief
• MPC: offense gets downgraded if not purposefully or knowingly but not if negligently or recklessly

Purpose or reckless negates the lack of mens rea

If actor is reckless or negligent in having a belief about the necessity of that force under the circumstances, or when the actor is reckless or negligent in acquiring knowledge about the justifiability of her use of force, no justification defense is available

Question 11

Defense of others:

Common Law, Traditional v. Modern

Answer 11

Traditional CL: person is justified in using force to protect a third party from unlawful use of force by an aggressor to the extent that the third party is justified in acting in self defense,

Traditional CL required that the third party actaully would have been justified in using self defense.

Modern CL: person is justified in using force to protect a third party from unlawful use of force by an aggressor to the extent that the thrid party is justified in acting in self-defense,

Today, majority view is that the use of force may be justified if it reasonably appears necessary for the protection of the third party

Question 12

Defense of Others:

MPC - 3 Factors

Answer 12

• 1. He uses no more force to protect the third-party than he would be entitled to use in self-protection, based on the circumstances as he believes them to be;
• 2. Under the circumstances as he believes them to be, the third party would be justified in using such force in self-defense; and
• 3. He believes that intervention is necessary for the third party’s protection.

Question 13

Defense of Habitation:

Early CL

Modern CL

Other CL Jurisdictions

Answer 13

Early Common Law:
• Permitted an occupant to use any force necessary including deadly force if he reasonably believed the force was necessary to prevent an imminent unlawful entry

Modern Common Law:
• Modified original rule to restrict use of deadly force to cases in which the occupant reasonably believes such force is necessary to prevent imminent unlawful entry AND
• The intruder intends to commit a felony or cause injury to the occupant or another occupant of the dwelling

Other CL Jurisdictions:
• Occupant can use deadly force only if he reasonably believes that such force is necessary to prevent imminent unlawful entry AND
• That the intruder intends to commit a forcible felony OR kill OR cause grievous bodily injury to the occupant or another occupant
• Described as a kind of “accelerated” self-defense or defense of others

Question 14

Defense of Habitation:

Castle Doctrine generally

Answer 14

• In some jurisdictions, a person protecting his abode may stand his ground (instead of retreating) and use deadly force against an intruder (or an invited guest) who intends to commit an armed robbery and/or inflict serious bodily harm upon the person or upon those in the property.

Question 15

Defense of Habitation

Castle Doctrine:

Reasonable Expectation Test

Answer 15

Focuses on the protection the inhabitants of a structure reasonably expect

Court says an open window or door provides some expectation of protection bc reasonable people understand that portals may not be crossed without permission by the owner

Question 16

Defense of Habitation

v.

Defense of Property

Answer 16

If someone intrudes into your house it is different than if someone is taking your property because you believe there is a threat of harm to yourself or to your family, not just material belongings

Question 17

Defense of Property

CL & MPC

Answer 17

Common Law – A person in possession of real or personal property is justified in using non-deadly force if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession of the property.

• Under no circumstances may a person use deadly force to prevent dispossession.

MPC: Basically conforms to the common law. A person may use non-deadly force upon another person to prevent or terminate an entry or other trespass upon land, or to prevent the carrying away of personal property, if he believes that three conditions exist:

1. The other person’s interference with the property is unlawful;
2. The intrusion affects property in the defendant’s possession, or in the possession of someone else for whom he acts,
   AND
3. Non-deadly force is immediately necessary.

Question 18

Defense of Necessity:

Six Elements

Answer 18

NECESSITY ELEMENTS

1. Balance of Harms: harm D was seeking to avoid was greater than the harm caused by D’s illegal act
2. Legislature has not already spoken on the topic
3. There is a causal connection between D’s illegal act and the harm D was trying to avoid
4. No effective legal alternative was available to the defendant
5. The defendant was seeking to avoid a clear and imminent danger
6. D was not at fault for creating the dangerous situation

Question 19

Excuse Defenses In General:

Definition and Defenses Included

Answer 19

Definition:

• Even though D broke the law, and was not morally justified in doing so, the defendant should not be punished because he lacks moral responsibility for his actions

Defenses Include:

• 1. Duress
• 2. Intoxication
• 3. Insanity

Question 20

Excuse Defenses: Duress

1. Definition
2. Basic CL Elements

Answer 20

1. Definition: An affirmative defense where the D claims she was threatened by another person with physical force (either to herself or a third person) unless she committed a specific crime
2. Basic ELEMENTS in CL jurisdiction:
3. D acted in response to an imminent threat of death or serious bodily injury
4. D had a well-grounded (or reasonable) fear that the threat would be carried out unless she committed a specified crime
5. D had no reasonable opportunity to escape the threatened harm

Question 21

Necessity v. Duress

Answer 21

• Necessity involves response to a dire situation
• Duress involves a response to a threat form a specific individual
• Person wants you to commit a certain crime

Question 22

Duress:

CL v. MPC

Answer 22

CL: no defense to murder, but defense to felony murder in common law

MPC: can be a defense to homicide

• Extracts a general principle from CL rule
• Leaves it up to the jury to decide, in any situation whether a person of reasonable firmness would have been able to avoid the threat

Question 23

Excuse Defenses:

Common Law Voluntary Intoxication

Answer 23

• CL: used only if crime is specific intent, not general intent
• D must show that because of her intoxicated condition, she did not have the specific intent required for commission of the crime
• Not used to negate mens rea, legislature worried about people purposefully getting drunk and committing crimes

Question 24

MPC Intoxication

1. Mens Rea Defense
2. Three types of intoxication recognized

Answer 24

1. Mens Rea Defense: Any form of intoxication is a defense to criminal conduct if it negates an element of the offense.
2. Three Types:

• 1. Voluntary (self-induced) intoxication
• 2. Pathological intoxication
• 3. Involuntary (non-self-induced) intoxication.

Question 25

MPC Intoxication:

Mens Rea Exception

Answer 25

Since the Code does not distinguish between “general intent” and “specific intent” offenses, the mens rea defense is broadly applied, with one exception:

In the case of crimes defined in terms of recklessness, a person acts “recklessly” as to an element of the crime if, as the result of the self-induced intoxication, he was not conscious of a risk of which he would have been aware had he not been intoxicated.

Question 26

MPC: Involuntary Intoxiation

Answer 26

• Pathological and involuntary intoxication are affirmative defenses, if the intoxication causes the defendant to suffer from a mental condition comparable to that which constitutes insanity

Question 27

Insanity: Common Law Rule

Answer 27

Insane if at the time of committing the act, D was laboring under disease of the mind such that:

• She did not know the nature of quality of her act,
or
• If she did know the nature or quality of the act, she didn’t know what she was doing was wrong

Question 28

Insanity: MPC Rule (ALI Test)

Answer 28

• Very Broad
• Not responsible (insane if…)
• 1. At the time of committing the act
• 2. As a result of mental disease of defect
• 3. D lacks substantial capacity either to appreciate the criminality of his conduct or conform his conduct to the requirements of the law

• Recognizes Degrees of Incapacity

Question 29

Insanity:

M’Naughten Test

Answer 29

Focuses only on cognitive deficiency - what D knows or doesn’t known, not what D can/can’t control

Person is insane if…
At the time of committing the act,
D as laboring under such a defect of reason, from a disease of the mind, that:

1. He did not know the nature and quality of her act;
   • OR
2. If he did know the nature and quality of her act, she did not now that what she was doing was wrong

Question 30

Insanity: Problems with M’Naughten Test

Answer 30

This test requires total cognitive disability and does not allow for:

• Degrees of incapacity
• Volitional incapacity in which a person is aware that conduct is wrong yet cannot control his behavior

Difficult for expert psychologists to testify on the issue

• Required to test guilt or innocence by a concept which bears little relationship to reality

The result is that instead of being properly treated at a mental institution to improve, D is sentenced to prison and released back into society without treatment.

Question 31

Insanity: Points in Time at which

D’s Mental Illness/Competence is Relevant

Answer 31

1. Point at which you committed the crime

• If insane at the point of the crime is what matters if you are guilty or not
• Doesn’t matter if you get better later

2. When the trial is going on

• When trial is occurring and you have mental disease or defect trial can be unfair if you cannot testify and stuff
• Government can force you to take medication to force you to become mentally stable enough to have trial

• 3. Sentencing (not mentioned in the book)

• Relevant to judge in sentencing, especially with death penalty
• If you develop mental illness while on death row, cant be executed

Question 32

Insanity:

Competence, what is it what does it mean

Answer 32

• Do you understand the proceedings in a way that you are capable of assisting your lawyer
• In terms of being eligible for execution, you have to understand that you’re going to die and that people are going to kill you because of the crime you committed.