Defenses

Question 1

Identify the 5 different types of defenses.

Answer 1

There are 5 different types of defenses: failure of proof defenses; offense modification defenses; justification defenses; excuse defenses; and public policy non-exculpatory defenses.

Question 2

Articulate the difference between an excuse defense and a justification defense.

Answer 2

Excuse defenses and justification defenses are affirmative defenses. In both kinds, the burden is on the defendant to assert the defense.

Excuse defenses assert something particular about the defendant, essentially saying that, even though the defendant did the act in question, the defendant should be excused because of something about them. For instance, insanity is an excuse defense. The defendant is asserting that even though he did the act, he should be excused because he was legally insane at the time.

In contrast, justification defenses say that even though the defendant committed the act, he should not be held culpable because the act was justified, it was the right thing to do.

Self-defense is a justification defense. In asserting self defense, the defendant is saying that even though he did the act, he should not be held culpable because he acted in self-defense and was facing an imminent threat. He did the right thing, not something which deserved punishment.

Question 3

Articulate why self defense is considered a justification defense.

Answer 3

Self-defense, sometimes asserted in homicide cases, is considered a justification defense because we believe that one who acts to protect themselves is entitled to do so under particular circumstances.

We believe that the defendant did the right thing, or at least, did nothing wrong. We do not want to embolden aggressors, nor suggest that right should give way to wrong. As long as the defendant’s conduct meets the requirements (proportionality, necessity, imminence etc), his act to defend himself is justified and not blameworthy.

Question 4

Formulate a rule for the application of self defense under the common law.

Answer 4

A person who is not an aggressor is justified in using force on another if he reasonably believes the use of such force is necessary to protect himself from the imminent use of unlawful force by the other person.

Deadly force is NOT justified unless the actor reasonably believes it is necessary to prevent use of deadly force by the aggressor.

Question 5

Identify the four primary components of a self defense claim.

Answer 5

necessity; proportionality; imminence; and reasonable belief

Question 6

Articulate when a non-deadly aggressor can regain his right of self defense.

Answer 6

A non-deadly aggressor can regain his right of self-defense if he is met with disproportional force, or if he communicates retreat.

Question 7

Articulate when a deadly aggressor can regain his right of self defense.

Answer 7

A deadly aggressor can only lose his aggressor status and regain his right of self-defense if he communicates retreat.

Question 8

Discuss the degree of force component of necessity.

Answer 8

Proportionality and necessity are related. The defendant may only use as much force as is necessary to repel the attack, even if it is less than the force being used by the aggressor. Conversely, if the only way to repel a non-deadly attack is to use deadly force, the defendant must suffer the non-deadly attack rather than use deadly force to repel it.

Question 9

Identify and articulate the rules with respect to retreat and non-retreat jurisdictions.

Answer 9

Retreat jurisdictions require the defendant to retreat if he knows he can do so in complete safety. Even in retreat jurisdictions, one is not required to retreat in their own home. Non-retreat jurisdictions do not require the defendant to retreat at all. Even if the defendant can avoid the attack completely by retreating, he need not retreat; he can stand his ground.

Question 10

Discern the differences between the MPC and the common law rule of self defense.

Answer 10

The MPC rule of self-defense is that a person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasion.

There are 2 differences between the MPC rule and the common law rule of self-defense:

1. There is no reasonableness requirement to the belief of the need to use force. It is a subjective assessment, looking at what is in the defendant’s mind;
2. MPC “immediately necessary” instead of imminent. This authorizes the use of force sooner under the MPC than under the common law.

Question 11

Discuss the pros and cons of the imminence requirement.

Answer 11

The imminence requirement is positive in that it ensures force is only used in response when it is the only option.

However, strict application of the imminence requirement can be unfair. If a defendant is aware that the aggressor is going to use deadly force on her (like going to his car to get his gun), and waits until the deadly force is truly imminent, it may be too late to defend herself.

Question 12

Articulate the portion of the self defense rule that uses an “objective” standard.

Answer 12

The portion of the self defense rule that is objective is the reasonable belief portion. The defendant must reasonably believe that his use of force is necessary. In some states, when the belief is unreasonable, a partial defense is still permitted, and the defendant would be convicted of manslaughter.

Question 13

Argue the pros and cons of further particularizing the reasonable person in the context of self defense.

Answer 13

As with other defenses, there is significant criticism of the common law doctrine of self-defense for being male centered or based almost entirely on a male response. If the doctrine itself is gendered, some degree of particularization is necessary simply to extend the doctrine sufficiently to include women. Increasing the particularization of the self-defense doctrine can help to focus on the surrounding circumstances that lend credence to the defendant’s belief. Characteristics like age, sex, and physical stature play a significant part in the danger and fear in aggressive and violent interactions.

Including other aspects of the defendant’s history or personal idiosyncrasies however run the risk of eliminating the standard completely.

Question 14

Articulate the underlying principle or rule for defense of others.

Answer 14

The underlying principle for defense of others is that the defendant is entitled to use force to the degree that the other who is being protected is entitled to use force.

Question 15

State the two approaches to the defense of others defense.

Answer 15

There are 2 approaches to the defense of others.

1) Alter ego approach: defendant stands in the place of the other, and the defendant runs the risk that in fact the other does not have the right of self-defense.
2) Reasonable appearances approach. This approach permits the defendant to use force to the extent that it reasonable appears that the other had the right to self defense.

Question 16

Articulate the fundamental rule with respect to the defense of personal property.

Answer 16

The fundamental rule with respect the defense of personal property is that deadly force is never permitted to protect personal property.

Question 17

Defend the claim that defense of habitation is different than defense of other property.

Answer 17

Defense of habitation is different than the defense of property. Because of the special place that the home holds, because the home is supposed to be our sanctuary against the world outside, because the home holds our loved ones, and because the home is our castle, the defense of the home allows for the use of deadly force.

Question 18

Articulate the 3 approaches to defense of habitation and provide an example for each.

Answer 18

There are 3 approaches to the defense of habitation:

The broad approach states that one may use deadly force upon another person if he reasonably believes the use of such force is necessary to repel any imminent and unlawful entry into the home.

The middle/moderate approach states that one may use deadly force upon another person to repel an imminent and unlawful entry into the home if he reasonably believes that the intruder intends imminent and unlawful entry, the intruder intends to injure him or another occupant or commit a felony inside, and the use of deadly force is necessary to prevent the intrusion.

The narrow approach provides that a person is justified in using deadly force on another if her reasonably believes that the other person intends imminent unlawful entry, the intruder intends to commit a forcible felony therein or kill or seriously injure an occupant, and the force is necessary to prevent the intrusion.

Question 19

Articulate the “objective” aspect of a defense to habitation claim.

Answer 19

The objective aspect of the defense of habitation doctrine is that the defendant’s belief about the intrusion and the force that must be used to repel the invasion must be reasonable.

Question 20

Understand the characterization of police force as seizure.

Answer 20

Police arrest does count as a seizure because they are essentially seizing the person of the accused.

Question 21

Articulate the two part test to determine if a police officer can use deadly force to prevent escape or effectuate an arrest.

Answer 21

The two part test that a police officer must abide by to use deadly force to effectuate an arrest is that deadly force if he reasonably believes:

1) that the other person is committing a felony;
2) deadly force is necessary to prevent the commission of a crime.

Question 22

Explain why Necessity is best characterized as a justification

Answer 22

Necessity is best characterized as a justification defense because it focuses on the circumstances of the event and follows the same rules as other justifications – triggering conditions permit a necessary and proportional response. When the defendant argues necessity, they are arguing that their conduct was right given the circumstances.

Question 23

Articulate the 6 elements necessary for a Necessity claim.

Answer 23

1) The act charged must have been done to prevent a significant evil
2) There must have been no adequate alternative
3) The harm caused must not have been disproportionate to the harm avoided
4) The defense is only available for an emergency
5) The harm measured is the one that is reasonably foreseeable – not the harm that actually occurs
6) Finally, the predicament cannot be the actor’s own fault

Question 24

Explain why courts rarely allow necessity claims in the context of civil disobedience

Answer 24

Courts rarely allow for necessity defenses in the context of civil disobedience because the point of civil disobedience is to expose the unjustness of the law or the event and suffer the legal consequences.

In addition, civil disobedience claims don’t usually met the 6 requirements because the democratic process is an alternative, and engaging in the disobedience itself is considered the predicament being the actor’s own fault.

Question 25

Articulate the 3 requirements for a duress claim.

Answer 25

The 3 requirements for a duress claim are generally

1 )An immediate threat of death or serious bodily injury from a human being to self or another;

2) A well-grounded fear that the threat will be carried out;
3) No reasonable opportunity to escape the threatened harm.

Question 26

State 2 differences between a necessity and a duress claim that courts have articulated or used to distinguish between them in cases.

Answer 26

Two differences that courts have used to distinguish between necessity and duress claims are

1) the nature of the threat – threats of necessity are natural and the threats of duress must be human threats
2) the nature of the choice – where necessity is the defendant choosing the lesser evil and duress claims involve the defendant having their will overpowered.

Question 27

Articulate the 2 essential differences between the MPC and Common Law versions of necessity (choice of evils) and duress defenses.

Answer 27

The essential differences between the common law necessity and the MPC choice of evils defenses are necessity is not available as a defense to murder, and the threat must traditionally be natural and finally that it is only available in an emergency. In contrast, the MPC allows for the choice of evils defense to be asserted in cases of murder, permits the threat to be natural or human, and has no imminency requirement.

The differences between the common law defense of duress and the MPC defense for duress are that under the common law the threat must be imminent and the defense is not available for murder. In contrast, under the MPC defense of duress does not require imminence (it can be a previously uttered threat to be carried out at a later time) and it is available as a defense to murder.

Question 28

Explain why duress might be characterized as an excuse.

Answer 28

Duress might be characterized as an excuse because it involves the personal capacity of the defendant. The defendant is non-deterrable, the choice is heavily circumscribed and the defendant did not cause the harm – the coercer did.

Question 29

State why “escape from intolerable prison conditions” is better characterized as necessity and the seminal requirement for this defense

Answer 29

Escape from intolerable prison conditions is better characterized as necessity because the coercer does not have the culpable mens rea for the offense of escape. For duress to apply, the coercer would need to have the mens rea for the crime committed, as in the case of Contento Pachon.

Question 30

Understand and articulate when and how duress might be available in felony murder cases.

Answer 30

Duress might be available in felony murder cases if the defendant was coerced to engage in the underlying felony. Since the defendant would be excused from the underlying felony, it stands to reason that they would be excused from the felony murder.

Question 31

Articulate 2 reasons why the defense of intoxication should be allowed and 2 reasons it should be abolished.

Answer 31

Two reasons why the voluntary intoxication defense should be permitted are that 1) Intoxication affects mens rea and therefore the defendant should be able to assert the reasons for which he doesn’t possess the requisite mens rea. 2) The prosecution is required to prove each and every element of the offense and preventing the defendant from asserting the intoxication defense and instead having all cases of voluntary intoxication count as recklessness, the burden on the prosecution is reduced.

Two reasons why the voluntary intoxication defense should be abolished are that 1) the harms of voluntary intoxication are significant and notorious. To reduce these harms it is wise to abolish the defense. 2) Further, the experience of intoxication is widespread, and everyone knows that it impacts decision making. To allow individuals to assert that they lacked the mens rea when they voluntarily placed themselves in a position where their decision making ability is compromised s incongruent with principles of responsibility.

Question 32

Explain why the rules on intoxication defense vary so widely from state to state.

Answer 32

The rules on the intoxication defense vary widely from state to state because of the common law states are utilizing the common law rule which permits intoxication as a defense only to specific defense crimes, while at the same time trying to respond to the social need to recognize the harms caused by voluntary intoxication. At the same time, the MPC permits this as a defense because it goes to mens rea but not all states follow that rule.

Question 33

Articulate the 3 approaches to voluntary intoxication as a defense in the United States.

Answer 33

1) Some states allow for the defense only in specific intent crimes.
2) Some states allow the defense of voluntary intoxication when it goes to mens rea but also allow it to serve as evidence of recklessness.
3) Some states have abolished the defense altogether.

Question 34

Articulate why involuntary intoxication has a broader application than voluntary intoxication (as a defense) in relation to the reasons stated in #1 above.

Answer 34

Involuntary intoxication is allowed in all cases where voluntary intoxication is a defense an for general intent crimes as well. This is because in cases of involuntary intoxication, the defendant has not knowingly engaged in risk-taking behavior where he knows that his mental capacity will be compromised.

Question 35

State the 4 kinds of involuntary intoxication that may ground a defense.

Answer 35

1) Coerced: Compelled to drink against his/her will
2) Pathological: Intoxication “grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is unusually susceptible”
3) Innocent mistake: Where defendant did not know, or was tricked with respect to, the character of the substance
4) Unexpected: Intoxication from ingesting medically prescribed drugs, under medical advice and without defendant knowing its potentially intoxicating effects

Question 36

Explain what type of defense competency to stand trial is.

Answer 36

A non-exculpatory public policy defense because it does not evaluate the defendant’s guilt, or reasons for his behavior. The principles of due process do not permit a trial when the defendant is incapable of understanding the charges against him or assisting in his own defense. The mental state examined is that of the defendant at trial and not at the time of the offense.

Question 37

Articulate the 2 characteristics necessary for competency to stand trial

Answer 37

Two characteristics necessary to be competent to stand trial are that the defendant must understand the charges against him and be able to instruct counsel so as to participate in his own defense.

Question 38

Identify the parties responsible for ensuring the defendant is not tried while incompetent to stand trial.

Answer 38

All court officers are responsible to ensure that a defendant does not stand trial while incompetent to do so. A judge or any counsel may make a motion if they believe that the defendant’s competency is in question.

Question 39

Explain why insanity is an excuse defense, and what happens when it succeeds

Answer 39

Insanity is an excuse defense because it focuses on the defendant him or herself and not on the circumstances. The defendant is essentially asserting that they did do what is alleged but that due to their own mental condition, they should not be held culpable. When one is successful with the insanity defense and achieves a NGRI verdict, they are generally held in a psychiatric facility to a period of some time (sometimes up to a month) to evaluate and ensure that thy do not pose a threat to others.

Question 40

Articulate the primary differences between the M’Naghten standard and the MPC standard for testing insanity

Answer 40

The primary differences between the M’Naghten standard ad the MPC standard are that the MPC requires that the defendant only lacks substantial capacity to appreciate the criminality of the act (not fail to know what he was doing or fail to know it was wrong) and also the MPC includes a volitional component so that if the defendant could not control his conduct he may still be relieved of culpability.

Question 41

Hypothesize as to the role a medical expert might play in an insanity defense

Answer 41

A medical expert testifying in a trial where the insanity defense is at issue may testify to the existence of a disease of the mind, and the likely effect on the defendant’s capacity to understand what he was doing or control his behavior.

Question 42

Articulate the primary difference between insanity and diminished capacity as a defense.

Answer 42

The primary difference between diminished capacity and the insanity defense is that diminished capacity is more a failure of proof defense whereas insanity is an excuse defense. The diminished capacity defense leads to an acquittal when successful and the defense is only available in limited crimes.

Question 43

State 3 factors that might go to the elevation of a juvenile to an adult court.

Answer 43

There are several factors which will elevate the juveniles to adult court including the seriousness of the crime, the age of the defendant, and the level of coordination in committing the crime.