Defenses: Justifications / Excuses Flashcards
What is Self Defense?
Defendant may use force that appears reasonably necessary to avoid unlawful force upon defendant
Within Self Defense, what constitutes Force Allowed?
Reasonable force to avoid harm
Within Self Defense, is retaliation allowed?
No
Within Self Defense, when is Deadly Force allowed?
Defendant must be in immediate danger of an unlawful deadly attack
Within Self Defense - Deadly Force, when the altercation is No Fault of Defendant, what is the duty to retreat?
No duty to retreat before deadly force is used.
Within Self Defense - Deadly Force, when the altercation resulted from a Non-Deadly Attack by Defendant, what is the duty to retreat?
Retreat required if it can be accomplished with complete safety before deadly force is used. Exception and their exceptions apply.
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?
1) Withdrawal by defendant, and 2) Withdrawal is communicated to victim before deadly force is used.
What is Defense of Others?
Defendant may use force that appears reasonably necessary to avoid unlawful force upon a third party.
Within Defense of Others, who can be defended?
Anyone, even a complete stranger
Within Defense of Others, what is the Force Allowed?
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.
Within Defense of Others - Force Allowed, are mistakes allowed?
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.
What is Defense of Habitation?
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.
Within Defense of Habitation, what are the two dangerous felonies?
1) Burglary 2) Arson
Within Defense of Habitation, what force may be used to prevent a trespass to real property?
Only reasonable, non-deadly force
What is Defense of Property?
Only reasonable, non-deadly force may be used to prevent misappropriation or destruction of personal property
Can Deadly Force ever be used to protect personal property?
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.
What are the two levels of force within Crime Prevention?
1) Non-Deadly 2) Deadly
Within Crime Prevention, when can reasonable, Non-Deadly Force be used?
Reasonable force may be used to prevent a felony or serious breach of peace
Within Crime Prevention, when can Deadly Force be used?
Deadly force may be used to prevent a dangerous felony involving risk to human life
Within Force Used to Effectuate an Arrest, what levels of force are Private Persons allowed?
1) Non-Deadly 2) Deadly
Within Force Used to Effectuate an Arrest, when can Private Person use Non-Deadly force?
1) Crime has in fact been committed, and 2) defendant has reasonable belief that correct person has been arrested
Within Force Used to Effectuate an Arrest, when can a Private Person use Deadly force?
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.
Within Force Used to Effectuate an Arrest, does the 4th amendment (seizure must be reasonable) apply to Police Officers?
Yes
What is Public Authority?
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.
What is Domestic Authority?
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.
What is Duress?
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.
Will Duress excuse homicide?
No
What is Coverture?
A wife commits a criminal act under command of her husband
Has Coverture been abolished statutorily in all jurisdictions?
Yes
What is Necessity?
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.
How is Necessity balanced?
Balance the harm anticipated vs the harm inflicted
What are the limitations of Consent?
Victim cannot consent to a felony
What elements of a crime may Consent negate?
“Trespassory” or “Without Consent” elements
What are the limitations of Condonation?
Forgiveness by victim is no defense. If condonation is given for valuable consideration, victim commits the crime of “Compounding a Felony”.
Is Mistake of Law or Ignorance of Law generally a valid defense?
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:
What are the exceptions to Mistake of Law or Ignorance of Law that may constitute a valid defense?
1) Statute was not published prior to commission of a crime 2) There was reasonable reliance on another statute or judicial decision
Within exceptions to Mistake or Ignorance of Law, do some jurisdictions allow reasonable reliance on official interpretation?
Yes
Within Mistake of Law or Ignorance of Law, will Mistake of Law based on Claim of Right negate Mens Rea?
Yes
Within Reasonable Mistake of Fact, what is the difference between a Reasonable Mistake and a Genuine Mistake?
Reasonable Mistake: A mistake a reasonable person would make
Genuine Mistake: Defendant, in fact, made the mistake
Reasonable Mistake of Fact is a valid defense to what crimes?
All crimes (except strict liability)
What is the test applied to Reasonable Mistake of Fact?
Take the facts as the defendant thought them to be and ask “is this a crime?”
Yes: No defense
No: Valid defense
Within Unreasonable Mistake of Fact, what is the difference between an Unreasonable Mistake and a Genuine Mistake?
Unreasonable Mistake: A mistake a reasonable person would not make
Genuine Mistake: Defendant, in fact, made the mistake
Unreasonable Mistake of Fact is a valid defense to what crimes?
Specific intent crimes only
What is the test applied to Uneasonable Mistake of Fact?
Take the facts as the defendant thought them to be and ask “is this a crime?”
Yes: No defense
No: Valid defense
What is Entrapment?
When 1) The criminal design originated with the police, and 2) the defendant was in no way predisposed to commit the crime
What are the limitations of Entrapment?
Merely providing an opportunity for a predisposed person to commit a crime in not entrapment
What is the test applied to Entrapment?
Subjective test
What is the focus within Entrapment?
The focus is on the defendants conduct
Within Entrapment, what is the rule with regard to Private Inducement?
A defendant cannot be entrapped by a private citizen-must be the government
What is Infancy?
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
What is the age in which infancy expires and the defendant is treated as an adult?
14 years of age
What crimes is Infancy a valid defense for?
All crimes
What is the M’Naghten rule of Insanity?
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.
is M’Naghten the majority rule?
Yes
Within Insanity, what constitutes wrong?
Defendant does not know what he is doing is Legally wrong. For multistate questions, morally (or) legally wrong will suffice
What crimes is Insanity a defense to?
All crimes
What is Intoxication?
Defendant is under the influence of any substance (alcohol, drugs, medicine - legal or illegal)
What is Voluntary Intoxication?
Defendant takes an intoxicant, absent duress, knowing its intoxicating nature
What is Voluntary Intoxication a defense for?
Specific Intent crimes (only if negates Mens Rea)
What is Involuntary Intoxication?
Accomplished by force, fraud or mistake as to the intoxicating nature of the substance
What is Involuntary Intoxication a defense for?
All crimes
What test is applied to Involuntary Intoxication?
Defendant must satisfy jurisdictions Insanity test.
Please list defenses:
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
What are the two types of Intoxication?
Voluntary and Involuntary
