Defenses Flashcards
Mistake of Fact Rule
- Ignorance or mistake concerning a matter of fact will affect criminal liability only if:
- it shows D lacked the intent required for the crime; and
- the mistake was objectively reasonable.
Mistake and Specific Intent Crimes
If mistake shows absence of a necessary “specific intent,” it need not be reasonable.
List of Specific Intent Crimes:
- larceny, other property crimes (intent to perma- nently deprive or defraud)
- burglary (intent to commit offense)
- attempt and conspiracy (intent to complete the target offense)
- any offense defined as doing something “with intent to . . . ”
Major Crimes that are NOT specific intent:
- Arson
- Rape
Mistake of Fact Analysis Under Modern Statutes
- Mistake of fact requires acquittal whenever it shows the lack of whatever mental state is required for the crime.
- e.g. In larceny prosecution where the D took property mistakenly believing it was theirs, there is no intent to deprive another of that person’s property.
Ignorance or mistake of law
ignorance that the criminal law makes one’s conduct a crime is not a defense.
Mistake of Law Rule
- Mistake of law is a defense if:
- D’s belief in the lawfulness of his conduct was objectively reasonable; and
- the defendant relied upon:
- a statute later held invalid;
- a judicial decision later overruled; or
- an official interpretation of the law by a public official.
- the defendant relied upon:
- D’s belief in the lawfulness of his conduct was objectively reasonable; and
What Mistake of Law can never be based on
- A defense of mistake of law cannot be based on advice of counsel.
- Exception:
- The mens rea of a crime requires knowledge that you’re breaking the law. If so, advice of counsel may show the lack of mens rea.
Mistake of Law and Crimes that require awareness of the law
- If a crime requires awareness of the law, even unreasonable ignorance or mistake that shows lack of awareness will require acquittal.
Insanity
M’Naghten Rule
Defendant can be acquitted only if:
- he had a serious mental disease or defect;
- this caused a defect in his reasoning abilities; and
- as a result, he did not either:
- understand the nature of the act he was doing; or
- understand that his act was wrong.
Analytical approach for insanity defense
- Assume the situation was as the defendant perceived it, in his own crazy mind.
- Ask under those circumstances, would he have been legally entitled to do what he did?
- If so, but only if so, he is entitled to acquittal.
M’Naghten Rule and Morally Permissible Conduct
Some jurisdictions would say a mentally impaired defendant should be acquitted under M’Naght- en if the evidence shows the person believed the conduct was morally permissible.
M’Naghten Rule and Irresistable Impulse
- Under the usual interpretation of the M’Naghten Rule, an insanity defense cannot be based upon loss of control (irrisestable impulse)
Defenses where loss of control may be a valid defense
- statutory versions of insanity based on the Model Penal Code
- the “irresistible impulse” version of insanity used in some jurisdictions.
Irresistible Impulse Test (VA and other jurisdictions)
The defendant will be found not guilty if he can show:
- He understood his actions, but,
- Due to a disease of the mind,
- He was unable to control or restrain these actions.
VA Insanity Defense
- In Virginia, the defendant may choose to use either the M’Naghten or irresistible impulse test. Not both.
VA Insanity Defense
Notice to the State
- D must give commonwealth’s attorney:
- Written notice,
- of D’s intent to raise an insanity defense,
- at least 60 days before trial.
VA Insanity Defense
Burden of Proof
- The defense has the burden of proving to the satisfaction of the jury that the defendant was insane.
- Note that this is not typical BoP language
Involuntary Intoxication as a defense
Treated as mental illness and insanity test applied.
Involuntary Intoxication Elements
Intoxication is involuntary if either:
- D did not know substance was intoxicating; or
- D consumed substance under duress.
Voluntary Intoxication as a Defense
Defendant should be acquitted only if the crime requires proof of a specific intent and the intoxication shows he lacked that intent.
Voluntary Intoxcation as Applied to Homicide Analysis
- can “disprove” premeditation
- cannot “disprove” malice aforethought and reduce murder to manslaughter
Voluntary Intoxication Modern Statutory Analysis
Voluntary intoxication requires acquittal if:
- crime requires mental state higher than recklessness; and
- intoxication shows lack of this mental state.
Voluntary Intoxication Minority Approach
- Voluntary intoxication is completely irrelevant to criminal liability.
- Thus D cannot argue lack of intent because of intoxication.
- SCOUTS held this is constitutionally permissible
VA Intoxication Defense
- Voluntary intoxication is not a defense, even for specific intent crimes, unless it has produced permanent insanity
- Exception:
- may prevent premeditation: defense to the crimes of the first degree murder or capital murder if a person is so greatly intoxicated as to be unable to deliberate or premediate
- Exception to this exception: mere intoxication from drugs or alcohol is not sufficient by itself to negate premeditation
- may prevent premeditation: defense to the crimes of the first degree murder or capital murder if a person is so greatly intoxicated as to be unable to deliberate or premediate
- Exception:
Infancy
- If under 7, prosecution is not allowed
- If under 14, rebuttable presumption against prosecution
- If 14 or over, prosecution is allowed
VA Infancy Rule
- If under 7
- assumed incapable of forming intent to commit crime.
- If under 14
- rebuttable presumption of incapacity, but the presumption grows weaker as the child grows older.
- If the age is 14 or over
- there is a presumption of capacity They may be tried as an adult if charged with offense that would be a felony if committed by adult.
Entrapment
Majority “Subjective Rule”
- Entrapment occurs only if:
- D was not predisposed to commit crimes of the sort charged; and
- Police officers created the intent to commit the offense in her mind
Entrapment
Predisposed Definition
Already planning/wanting to commit the crimes.
Previous crimes not enough to show predisposal
Entrapment
Minority “Objective Rule”
- Entrapment occurs if police activity would cause a reasonable unpredisposed person to form the intent to commit the crime
- e.g. officer trying to convince person to commit crime
- Focus on what cop does
Entrapment
VA Rule
- Prosecution may use prior crimes to show predisposition
- To use a prior crime to show predisposition, however, the crime must be close in time, a similar crime, and the probative value must outweigh the prejudice
Necessity
When Necessity is a valid defense
- Defense if:
- D believed committing crime would prevent imminent threatened harm
- D believed threatened harm would be greater than harm created by committing crime
- beliefs were objectively reasonable
Necessity
When Necessity is not a valid defense
- Not a defense if:
- D wrongfully created the situation making the choice necessary, or
- D killed another to avoid his own death.
Necessity
Escape Charges
A D charged with escape is likely to have a defense of necessity only if D attempted to surrender to authorities as soon as the immediate threat was over.
Duress or Coercion
General Rule
- Valid defense if D was under threat of:
- imminent and physical harm
- to D or a third person
Duress or Coercion Exception
- Duress is not a defense to a crime that consists of an intentional killing.
- Duress is available as defense to even murder, if the prosecution’s theory of guilt does not require proof of intent to kill (e.g. felony murder, murder 2)
Self-Defense
General Rule
- Defense if D believed:
- he was in imminent danger of being illegally physically harmed by another
- the force he used was necessary to prevent the threatened harm; and
- these beliefs were objectively reasonable.
Self-Defense
Deadly Force
- if crime involved deadly force, defense only if D reasonably believed:
- she was threatened with imminent death or serious bodily injury; and
- deadly force used was necessary to prevent that harm to her
Self Defense
Need to Retreat- General Rule
Opportunity to retreat is a factor to consider in determining whether deadly force was reasonable.
Self Defense
Need to Retreat- Minority Rule
- Any opportunity to retreat must be taken before using deadly force.
- applies only if retreat possible with complete safety.
- No duty to retreat when attacked in one’s own home.
Self-Defense
Aggressor Rules
- a person who starts a fight cannot use force in self-defense during the fight.
- An aggressor regains the right to use force in self-defense during a fight by either:
- withdrawing from the fight; or,
- giving notice of desire to do so.
Self-Defense Initial Aggressor Analysis
- Was D the initial aggressor?
- If yes, Did D actually withdraw from the fight?
- If so, Self-defense applicable
- If yes, Did D give notice of desire to withdraw?
- If so, Self-defense applicable
- If yes, Did D actually withdraw from the fight?
Imperfect defense in homicide cases
- A defendant charged with murder who actually but unreasonably believed killing was necessary in self-defense:
- is not entitled to acquittal, but:
- should be convicted of manslaughter rather than murder.
VA Self-Defense
Non-Deadly Force
- D may use physical force to defend himself if there is a reasonable appearance that the use of force is justified.
VA Self-Defense
Non-Deadly Force
How “Reasonable Appearance” is determined
Determined from the subjective viewpoint of the defendant at the time he acted.
VA Self-Defense
Non-Deadly Force
Duty to Retreat & Amount of Force Used
- there is no duty to retreat
- the force used must be reasonable under the circumstances.
VA Self-Defense
Deadly Force
Fault Requirement
- person claiming self-defense must be without fault and show an imminent danger of death or great bodily injury.
VA Self-Defense
Deadly Force
Present Danger Requirement
- if used in self-defense to a threat, there must be present danger of death or great bodily injury.
- Words alone are insufficient and fear of life and safety must be reasonable.
VA Self-Defense
Deadly Force
Retreat Requirement
- retreat is not required before using deadly force when confronted with an aggressor.
- exception: defendant was at fault/provoked the aggressor
- must retreat as far as safely possible before using deadly force.
- Exception to the exception: no duty to retreat on one’s own premises
- but use of force must be reasonably calculated to repel the intruder (deadly force allowed)
- exception: defendant was at fault/provoked the aggressor
VA Self-Defense
Deadly Force
When Aggressor Can Use Deadly Force
- aggressor may regain right to use force after total abandonment of the original attack
VA Self-Defense
Deadly Force
Defense of Dwelling
- Non-deadly force can be used to prevent entry, but deadly force may only be used when fearing great bodily injury
Defense of Others
Elements
- D believed that someone else was threatened with imminent unlawful physical harm by a third person
- D believed that the force she used was necessary to prevent the harm; and
- these beliefs were objectively reasonable.
Defense of Others
When Defense is Available
- Availability of defense turns on whether it reasonably appeared to D that the person she aided was in the right
- (e.g. not the aggressor, or had retreated)
VA Defense of Others Rule
- D steps into the shoes of the person he defends
- So no defense if the person defending had no legal right to use force in self-defense.
Defense of Property Rule
(Both VA and MBE)
- Force used,
- in the reasonable belief,
- that it was necessary to prevent unlawful interference with real or personal property,
- is a valid defense.
Defense of Property Limits
(Both VA and MBE)
- Only nondeadly force can be used to defend property.
- Force can only be used to prevent the interference with the propery, and not to regain the property
- except in the immediate pursuit.
Defense of Property
Use of Deadly Force
- Defense of property alone can never justify the use of deadly force.
