Defenses

Question 1

Insanity. What is? What are the test?

Answer 1

Legal insanity is a defense to all crimes, regardless of the intent requirement

• Depending on jurisdiction, one of four tests is used to determine whether D was so mentally ill when he committed a crime that he should be entitled to acquittaI:
  
  • M’Naghten
  • Irresistible Impulse
  • MPC
  • Durham

Question 2

Legal insanity test: M-Naghten

Answer 2

M’Naghten - D doesn’t know right from wrong and doesn’t understand the nature of his action

>> Due to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act.

Question 3

Legal insanity test: Irresistible Impulse

Answer 3

Irresistible Impulse - D acted due to an irresistible impulse and cannot conform his conduct to the law

>> Due to a mental illness, D was unable to control his actions or conform his conduct to the law

Question 4

Legal insanity test: MPC

Answer 4

MPC - combination of M’Naghten & Irresistible Impulse

>> As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law

Question 5

Legal insanity test: Durham (New Hampshire Rule)

Answer 5

Durham - but for his mental illness, D would not have acted
>> D’s conduct was the product of a mental illness

Question 6

Infancy defense

Answer 6

Infancy - a defense to criminal liability for minors

• Under 7 years old - no criminal liability
• 7-14 years old - rebuttable presumption against criminal liability

Question 7

Diminished capacity

Answer 7

Diminished capacity- a defense based on D’s mental defect

• Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime
• Usually limited to specific intent crimes

Question 8

Due process & D’s mental condition during trial

Answer 8

Due process & D’s mental condition during trial - Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either:

1. Understand the nature of the proceeding, or
2. Assist his lawyer in the preparation of his defense

Question 9

Capital punishment Mental deficiency at trial

Answer 9

Capital punishment - D cannot be executed if he is incapable of understanding the nature and purpose of theInt punishment at the time of execution

Question 10

Intoxication defense types

Answer 10

Voluntary intoxication - a defense to specific intent crimes

Involuntary intoxication - a defense to all crimes

Question 11

Voluntary intoxication

Answer 11

Voluntary intoxication - a defense to specific intent crimes

• Voluntary intoxication = D chose to consume an intoxicant
  
  • >> Alcoholics and addicts are voluntarily intoxicated
• Not available if D becomes intoxicated in order to commit the crime (i.e., ‘‘liquid courage’’)
• Only a defense to specific intent crimes

Question 12

Involuntary intoxication

Answer 12

Involuntary intoxication - a defense to all crimes

• Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant
• Requirements - an intoxicant is taken involuntarily if taken:

1. Without knowledge of its nature,
2. Under direct duress imposed by another person, or
3. Pursuant to medical advice without notice of its intoxicating effect

• May be treated as a mental illness if, b/c of the intoxication, D satisfies the relevant jurisdiction’s insanity test

Question 13

Self-defense defense (non-deadly force)

Answer 13

Non-deadly force - may be used if D:

1. No fault – D is not at fault (i.e., not the initial aggressor); and
2. Reasonable belief of unlawful force- D reasonably believes it necessary to protect himself from imminent unlawful force.

• Allowable force - the amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate

Question 14

There is a duty of retreat in self-defense?

Answer 14

No duty to retreat

Question 15

Deadly force, when can be used?

Answer 15

Deadly force - may be used if D:

1. No fault - D is not at fault (i.e., not the initial aggressor); and
2. Reasonable belief of death or great bodily harm- D reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm

• No duty to retreat under majority rule

Question 16

When is self-defense by an initial aggressor

Answer 16

Self-defense by an initial aggressor- available if either:

1. Initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so, or
2. Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation

Question 17

Defense of others

Answer 17

Defense of others - same rules apply as for self- defense

• D can defend another if D reasonably believes the person he is protecting could have legally defended himself.

Question 18

Use of force by police when effectuate arrest

Answer 18

Police use of force to effectuate arrest:

• NDF - permissible to reasonably effectuate arrest
• DF - permissible to:

1. Prevent the escape of a fleeing felon; and
2. Fleeing felon poses a threat of death or serious bodily harm

Question 19

Citizen use of force to effectuate arrest

Answer 19

• NDF - permissible if:
  
  1. Crime was actually committed; and
  2. Reasonable belief the person to be arrested committed it
• DF - permissible to:
  
  1. Prevent the escape of a person who committed a felony; and
  2. The fleeing felon threatens human life

Question 20

Use of force and crime prevention

Answer 20

Crime prevention - i.e., using force to prevent a crime from occurring

• NDF - permissible to prevent a serious breach of the peace
• DF - common law and modern rules differ:
  
  • >> Common law - permissible to prevent commission of felony
  • >> Modern – permissible to:
    
    1. Terminate or prevent a dangerous felony; and
    2. Felony threatens a serious risk to human life

Question 21

Defense of dwelling (use of force)

Answer 21

Defense of dwelling

• Non-deadly force - allowed to prevent or terminate an unlawful entry or attack on one’s dwelling
• Deadly force - may be used if one reasonably believes:

1. Force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or
2. Force is necessary to prevent entry by a person who intends to commit a felony in the dwelling

Question 22

Defense of property (non-dwelling)

Answer 22

Defense of property (non-dwelling) - deadly force not allowed

• Non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property
• Need to use force must reasonably appear imminent

>> I.e., force not permitted if request to desist is sufficient

Question 23

Recovery of property (use of force)

Answer 23

Recovery of property - force is not allowed to regain property wrongfully taken, unless one is in immediate pursuit of the taker

• E.g., D steals A’s purse; A can only use reasonable force to recover purse if she is immediately pursuing D

Question 24

Necessity defense

Answer 24

Necessity- valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society

• Objective standard - D’s commission of the crime must be reasonably necessary; good faith alone is insufficient
• Exceptions - necessity is not available if either:

1. Crime committed results in the death of another, or
2. D caused the events giving rise to the necessity

Question 25

Duress defense

Answer 25

Duress - a valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family

• E.g., someone points a gun at D and threatens to kill him if he does not rob a bank
• Exception- duress is not a defense to homicide crimes

Question 26

Consent defense

Answer 26

Consent - consent of victim is generally not a defense, but may be available if it negates an element of the offense

• Never available for certain offenses (e.g., statutory rape)
• Requirements- must be established that:

1. Consent was voluntarily and freely given;
2. Party was legally capable of consenting; and
3. No fraud was involved in obtaining consent

Question 27

Entrapment (defense)

Answer 27

An available defense to criminal liability if a law enforcement agent has induced D to commit a crime.

A very narrow defense; rarely effective b/c it is negated by any predisposition on D’s part

• As a result, it is unlikely to be a correct MBE answer

Question 28

Entrapment (defense) requirements

Answer 28

1. Criminal design originated with law enforcement
   
   • Criminal design= idea or plan for the crime
2. D was not otherwise predisposed to commit the crime
   
   • >> D must have had no predisposition to commit the given crime prior to his contact with law enforcement
   • >> Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment
     
     • E.g., undercover officer buying drugs from dealer; officer merely provided opportunity for D to make a sale

Question 29

Mistake of law or fact (defense)

Answer 29

Mistake of law - almost never a defense Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime

• Exceptions to general rule - very rare, but can arise where either:
  
  1. Reasonable reliance on an invalid statute
  2. Mistake or ignorance negates an element of a crime requiring knowledge of the law

Question 30

Mistake of fact (defense) general rule

Answer 30

Mistake of fact - available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime.

Note - mistake includes ignorance

Question 31

Mistake of fact depending on the type of crime (intent)

Answer 31

• Crime with Specific intent
  
  • Any mistake of fact is a defense
• Malice & general intent
  
  • Only a reasonable mistake of fact is a defense
• Strict liability (i.e., no intent)
  
  • Mistake of fact is never a defense