Defenses: Justifications / Excuses

Question 1

What is Self Defense?

Answer 1

Defendant may use force that appears reasonably necessary to avoid unlawful force upon defendant

Question 2

Within Self Defense, what constitutes Force Allowed?

Answer 2

Reasonable force to avoid harm

Question 3

Within Self Defense, is retaliation allowed?

Answer 3

No

Question 4

Within Self Defense, when is Deadly Force allowed?

Answer 4

Defendant must be in immediate danger of an unlawful deadly attack

Question 5

Within Self Defense - Deadly Force, when the altercation is No Fault of Defendant, what is the duty to retreat?

Answer 5

No duty to retreat before deadly force is used.

Question 6

Within Self Defense - Deadly Force, when the altercation resulted from a Non-Deadly Attack by Defendant, what is the duty to retreat?

Answer 6

Retreat required if it can be accomplished with complete safety before deadly force is used. Exception and their exceptions apply.

Question 7

Within Self Defense - Deadly Force, when the altercation resulted from a Deadly Attack or Dangerous Crime initiated by Defendant, what duty is owed by Defendant before Deadly Force can be used?

Answer 7

1) Withdrawal by defendant, and 2) Withdrawal is communicated to victim before deadly force is used.

Question 8

What is Defense of Others?

Answer 8

Defendant may use force that appears reasonably necessary to avoid unlawful force upon a third party.

Question 9

Within Defense of Others, who can be defended?

Answer 9

Anyone, even a complete stranger

Question 10

Within Defense of Others, what is the Force Allowed?

Answer 10

Force that defendant reasonably believed the third party had the right to use.

Please remember that, according to all views, where the defendant has the right to use force to protect a third person, he is only entitled to use the same level of force that the third person himself would have been.

Question 11

Within Defense of Others - Force Allowed, are mistakes allowed?

Answer 11

Yes

A defendant who uses force to protect a third person who is not entitled to use force to protect himself will not be held liable as long as he reasonably believed that the third party was privileged to use force himself and that his intervention was necessary to protect the third person. For example:

Dave comes to the aid of Tom, who is being attacked by Paul. Paul is an undercover police officer who is lawfully arresting Tom. Dave, not knowing that Paul is a police officer and believing that Paul is trying to rob Tom, comes to Tom’s aid by using force against Paul.

If Dave reasonably believed that Tom was entitled to use force and that Dave’s intervention was necessary to protect Tom, Dave will not be held liable.

Question 12

What is Defense of Habitation?

Answer 12

Deadly force may be used to prevent the commission of a dangerous felony by a trespasser. The two dangerous felonies are 1) Burglary 2) Arson.

Only reasonable, non-deadly force may be used to prevent a trespass to real property.

Question 13

Within Defense of Habitation, what are the two dangerous felonies?

Answer 13

1) Burglary 2) Arson

Question 14

Within Defense of Habitation, what force may be used to prevent a trespass to real property?

Answer 14

Only reasonable, non-deadly force

Question 15

What is Defense of Property?

Answer 15

Only reasonable, non-deadly force may be used to prevent misappropriation or destruction of personal property

Question 16

Can Deadly Force ever be used to protect personal property?

Answer 16

No. The defendant may only use reasonable, non-deadly force to protect personal property from misappropriation or destruction.

The laws are somewhat different when it comes to using force to defend property. One is never allowed to use deadly force to protect property, real or otherwise.

Question 17

What are the two levels of force within Crime Prevention?

Answer 17

1) Non-Deadly 2) Deadly

Question 18

Within Crime Prevention, when can reasonable, Non-Deadly Force be used?

Answer 18

Reasonable force may be used to prevent a felony or serious breach of peace

Question 19

Within Crime Prevention, when can Deadly Force be used?

Answer 19

Deadly force may be used to prevent a dangerous felony involving risk to human life

Question 20

Within Force Used to Effectuate an Arrest, what levels of force are Private Persons allowed?

Answer 20

1) Non-Deadly 2) Deadly

Question 21

Within Force Used to Effectuate an Arrest, when can Private Person use Non-Deadly force?

Answer 21

1) Crime has in fact been committed, and 2) defendant has reasonable belief that correct person has been arrested

Question 22

Within Force Used to Effectuate an Arrest, when can a Private Person use Deadly force?

Answer 22

1) Person is actually guilty of a felony, and 2) action was to prevent felon’s escape, and 3) felon poses serious threat of bodily harm

A private citizen is only allowed to use deadly force when trying to make an arrest if the suspect, in fact, committed a felony. Unlike police officers, who can act upon a reasonable belief and whose actions based on a reasonable belief will be vindicated even if those beliefs turn out to be wrong, a private citizen must actually be right about the suspect he is trying to arrest. If a private citizen uses deadly force on a suspect and it turns out that the suspect did not commit a felony, the private citizen’s actions will not be justified no matter how reasonable his belief might have been that the suspect actually did commit a felony.

Question 23

Within Force Used to Effectuate an Arrest, does the 4th amendment (seizure must be reasonable) apply to Police Officers?

Answer 23

Yes

Question 24

What is Public Authority?

Answer 24

A police officer may use reasonable force against another, take property, engage in activity provided the officer acts pursuant to law, court order, or process requiring or authorizing him to so act.

Question 25

What is Domestic Authority?

Answer 25

The parents of a minor child, or any person in loco parentis with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the Childs welfare.

Question 26

What is Duress?

Answer 26

Defendant commits a crime in response to threat of serious bodily harm or death.

The compelling of a person to undertake an action against his or her will by the threat of physical harm.

Question 27

Will Duress excuse homicide?

Answer 27

No

Question 28

What is Coverture?

Answer 28

A wife commits a criminal act under command of her husband

Question 29

Has Coverture been abolished statutorily in all jurisdictions?

Answer 29

Yes

Question 30

What is Necessity?

Answer 30

Defendant commits a criminal act under threat of natural forces

Necessity is a defense that permits a person to act in a criminal manner when an emergency situation, not of the person’s own creation, compels the person to act in a criminal manner to avoid greater harm from occurring.

Question 31

How is Necessity balanced?

Answer 31

Balance the harm anticipated vs the harm inflicted

Question 32

What are the limitations of Consent?

Answer 32

Victim cannot consent to a felony

Question 33

What elements of a crime may Consent negate?

Answer 33

“Trespassory” or “Without Consent” elements

Question 34

What are the limitations of Condonation?

Answer 34

Forgiveness by victim is no defense. If condonation is given for valuable consideration, victim commits the crime of “Compounding a Felony”.

Question 35

Is Mistake of Law or Ignorance of Law generally a valid defense?

Answer 35

No (except mistake of law as to Claim of Right to negate Mens Rea).

It is not a defense that the defendant believed her activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney.

Generally, if a defendant had the requisite intent to commit an act but, because of a mistake of law, he did not know that his act was illegal, he will not have a valid defense. This is the basis for the popular maxim “Ignorance of the law is no excuse.” For example:

Question 36

What are the exceptions to Mistake of Law or Ignorance of Law that may constitute a valid defense?

Answer 36

1) Statute was not published prior to commission of a crime 2) There was reasonable reliance on another statute or judicial decision

Question 37

Within exceptions to Mistake or Ignorance of Law, do some jurisdictions allow reasonable reliance on official interpretation?

Answer 37

Yes

Question 38

Within Mistake of Law or Ignorance of Law, will Mistake of Law based on Claim of Right negate Mens Rea?

Answer 38

Yes

Question 39

Within Reasonable Mistake of Fact, what is the difference between a Reasonable Mistake and a Genuine Mistake?

Answer 39

Reasonable Mistake: A mistake a reasonable person would make

Genuine Mistake: Defendant, in fact, made the mistake

Question 40

Reasonable Mistake of Fact is a valid defense to what crimes?

Answer 40

All crimes (except strict liability)

Question 41

What is the test applied to Reasonable Mistake of Fact?

Answer 41

Take the facts as the defendant thought them to be and ask “is this a crime?”

Yes: No defense
No: Valid defense

Question 42

Within Unreasonable Mistake of Fact, what is the difference between an Unreasonable Mistake and a Genuine Mistake?

Answer 42

Unreasonable Mistake: A mistake a reasonable person would not make

Genuine Mistake: Defendant, in fact, made the mistake

Question 43

Unreasonable Mistake of Fact is a valid defense to what crimes?

Answer 43

Specific intent crimes only

Question 44

What is the test applied to Uneasonable Mistake of Fact?

Answer 44

Take the facts as the defendant thought them to be and ask “is this a crime?”

Yes: No defense
No: Valid defense

Question 45

What is Entrapment?

Answer 45

When 1) The criminal design originated with the police, and 2) the defendant was in no way predisposed to commit the crime

Question 46

What are the limitations of Entrapment?

Answer 46

Merely providing an opportunity for a predisposed person to commit a crime in not entrapment

Question 47

What is the test applied to Entrapment?

Answer 47

Subjective test

Question 48

What is the focus within Entrapment?

Answer 48

The focus is on the defendants conduct

Question 49

Within Entrapment, what is the rule with regard to Private Inducement?

Answer 49

A defendant cannot be entrapped by a private citizen-must be the government

Question 50

What is Infancy?

Answer 50

1) Under 7 years of age constitutes conclusive presumption of inability to commit a crime 2) 7 to (less than) 14 years of age constitutes rebuttal presumption of inability to commit a crime 3) 14 and over treated as adult

Question 51

What is the age in which infancy expires and the defendant is treated as an adult?

Answer 51

14 years of age

Question 52

What crimes is Infancy a valid defense for?

Answer 52

All crimes

Question 53

What is the M’Naghten rule of Insanity?

Answer 53

As a result of mental illness the defendant 1) does not know the nature and quality of his act, or 2) does not know what he is doing is wrong

The original insanity test is known as the M’Naghten Rule, and it arose from the British courts in the mid 1800s. Under the M’Naghten Rule, the defendant must be found not guilty by reason of insanity if, due to his mental impairment, he either did not know the nature and quality of his criminal act, or, he did not know that the act was wrong at the time he committed it. Please note that the M’Naghten rule, which centers on a defendant’s understanding of right and wrong, is a cognitive test.

Most courts hold that a defendant does not know the nature and quality of his act if he does not understand the consequences of his actions. For example:

Fred shoots Barney with a gun. However, because of a mental illness that Fred has, he does not understand that shooting someone with a gun can hurt or kill the person. Because Fred does not understand the consequences of his actions, he is considered to not know the nature and quality of his act.

Most jurisdictions define the term “wrong” as legally wrong. In these jurisdictions, if Fred shoots Barney with a gun, Fred will be found not guilty by reason of insanity if his mental illness caused him to believe that shooting Barney was legally permissible.

Question 54

is M’Naghten the majority rule?

Answer 54

Yes

Question 55

Within Insanity, what constitutes wrong?

Answer 55

Defendant does not know what he is doing is Legally wrong. For multistate questions, morally (or) legally wrong will suffice

Question 56

What crimes is Insanity a defense to?

Answer 56

All crimes

Question 57

What is Intoxication?

Answer 57

Defendant is under the influence of any substance (alcohol, drugs, medicine - legal or illegal)

Question 58

What is Voluntary Intoxication?

Answer 58

Defendant takes an intoxicant, absent duress, knowing its intoxicating nature

Question 59

What is Voluntary Intoxication a defense for?

Answer 59

Specific Intent crimes (only if negates Mens Rea)

Question 60

What is Involuntary Intoxication?

Answer 60

Accomplished by force, fraud or mistake as to the intoxicating nature of the substance

Question 61

What is Involuntary Intoxication a defense for?

Answer 61

All crimes

Question 62

What test is applied to Involuntary Intoxication?

Answer 62

Defendant must satisfy jurisdictions Insanity test.

Question 63

Please list defenses:

Answer 63

1) Self-Defense 2) Defense of Others 3) Defense of Habitation 4) Defense of Property 5) Crime Prevention 6) Force Used to Effectuate and Arrest 7) Public Authority 8) Domestic Authority 9) Duress 10) Necessity 11) Consent 12) Condonation 13) Mistake 14) Entrapment 15) Infancy 16) Insanity 17) Intoxication

Question 64

What are the two types of Intoxication?

Answer 64

Voluntary and Involuntary