Defenses Negating Capacity & Justifications/Excuses/Defenses

Question 1

3 defenses that negate capacity

Answer 1

• A. Insanity
• B. Intoxication
• C. Infancy

Question 2

four insanity tests and burden of proof

Answer 2

– M’Naghten Rule (majority and federal courts): at the time of the crime, the accused suffered from a mental disease or defect and the accused did not know what he was doing was legally wrong
»> A defendant is not entitled to acquittal merely because he believes his acts are morally right
»> The insanity defenses may not be based on an abnormality manifested only by repeated criminal or otherwise antisocial conduct; thus, psychopaths and sociopaths are not eligible for the insanity defenses

– Irresistible Impulse Test: at the time of the crime, the accused suffered from a mental disease or defect and the accused may have known that his act legally was wrong, but could not resist

– M.P.C. Test: a defendant is not guilty if he can satisfy either the M’Naghten or Irresistible Impulse test

– Durham Test: defendant is entitled to acquittal simply if his crime was the product of mental disease/defect

– Burden of Proof:
»> general rule: criminal defendants are presumed sane
»> the state may require the accused to prove insanity by either a preponderance of the evidence or clear and convincing evidence as an affirmative defense; in fact, a state could probably eliminate the insanity defense altogether without violating the U.S. Constitution

Question 3

incompetency to stand trial as a defense

rule; BOP

Answer 3

• Incompetency to Stand Trial: exists if the accused is unable to understand the nature of proceedings or to assist his counsel

– Burden of Proof: the state may require the accused to prove incompetency by a preponderance, but not by clear and convincing evidence, as this would violate due process

Question 4

voluntary intoxication
(define; when it can be used as a defense)

Answer 4

• Voluntary intoxication: intoxication by drugs or alcohol that is self-induced and taken without duress (peer pressure would not count as duress)

– A defense to specific intent crimes only
»> Liquid Courage: Voluntary intoxication is not a defense to any crime if the accused used alcohol or drugs to “build up his nerve or courage” to commit the crime

– **must actually negate the intent element of the crime!
»> “I was so drunk I didn’t know the gun was loaded during my robbery” – insufficient
»> “I was so drunk, I didn’t know there was anyone else around when I was shooting” – sufficient

– Voluntary intoxication is not a defense to general intent crimes, malice crimes, or strict liability crimes

Question 5

involuntary intoxication
(define; when it can be used as a defense)

Answer 5

• Involuntary intoxication: taking an intoxicating substance (a) without knowledge of its properties, (b) under duress imposed by another, or (c) pursuant to medical advice and without knowledge of its intoxicating effects

– Involuntary intoxication is treated the same as insanity and thus is a defense to nearly all crimes

Question 6

infancy as a defense

3 CL rules

Answer 6

• At common law:

– Under age 7, no criminal liability

– Age 7-14, rebuttable presumption of no criminal liability

– Over age 14, treated as adults

Question 7

9 justifications/excuses/defenses

also BOP and special note

Answer 7

• A. Self-Defense
• B. Defense of Others
• C. Defense of Property
• D. Necessity
• E. Duress
• F. Mistake or Ignorance of Fact
• G. Mistake or Ignorance of Law
• H. Consent
• I. Entrapment

– These are generally considered affirmative defenses for which the defendant has the burden of production and the burden of persuasion (usually by a preponderance of the evidence).

– **note: The victim’s “contributory negligence” or “forgiveness” is not defense to any crime.

Question 8

self defense and nondeadly force

Answer 8

• Nondeadly Force: a person may use non-deadly force where reasonably necessary to protect one’s self from IMMINENT t use of unlawful force.

– For purposes of self-defense and defense of others, the defendant may not act out of a sense of preemption or retaliation.

– There is no duty to retreat before using non-deadly force in self-defense.

Question 9

self defense and deadly force

elements; duty to retreat; use of too much force

Answer 9

• Deadly Force: a person may use deadly force when she:
»> is confronted with imminent death or serious bodily harm
»> was not the aggressor, and
»> is confronted with unlawful force.

• In the majority of jurisdictions, there is no duty to retreat before using deadly force in self-defense. In a minority of jurisdictions (and under the M.P.C.), there is a duty to retreat before using deadly force in self-defense, unless the person using self-defense is in her own home.
• If too much force is used, self-defense is not available and thus the person claiming the defense would be guilty of a crime (e.g., battery). - but consider involuntary manslaughter

Question 10

defense of others

Answer 10

• Defense of others applies if the accused reasonably believed that another person was being attacked (and thus that person could have used self-defense)
»> scope of force depends on what the victim would be allowed to use (in defender’s mind)

– Under the majority view, the defense is not negated by the fact that the other person was not entitled to use self-defense, as long as accused reasonably believed so.

Question 11

defense of property

deadly force; nondeadly force; dwellings

Answer 11

**includes real and personal property

• Deadly Force. A person may not use deadly force (e.g., spring guns) solely to defend unoccupied property.

• Non-Deadly Force. Reasonable non-deadly force may be used to:
»> regain possession of property if that property was wrongfully taken from a person’s immediate possession AND the person demands return of the property before using such force (or such a demand is obviously futile) or
»> defend property in one’s possession if the need to use force reasonably appears imminent.

• Dwelling. A person may defend his or her HOME with deadly force:
»> (1) where the entry or attempted entry is violent or riotous and the person reasonably believes that deadly force is necessary to prevent personal attack on someone in the dwelling or
»> (2) to prevent someone from entering the dwelling for the purpose of committing a felony therein.

Question 12

necessity (and exceptions)

Answer 12

• A person may use the defense of necessity if she reasonably believes that her conduct was necessary to avoid some greater harm and she has no other lawful alternative

– **must be objectively reasonable

– Necessity generally must result from pressure from physical forces of nature or health-based emergencies

– Necessity is not a defense to homicide and it may not be used if the defendant was at fault in creating the necessity (e.g., taking a sail boat out despite hurricane warnings)

Question 13

duress (and 2 exceptions)

Answer 13

• If a person (or a member of her family) is subject to physical duress (i.e., serious violence or threats of immediate serious violence), this excuses the crime (e.g., A tells B that he will kill B’s son unless B robs the local bank. B robs the bank. B is not guilty because of duress).

– Duress may not be used as a defense for intentional/reckless homicide.
»> however duress may be used as a defense for felony-murder if it would serve as a defense to the underlying felony (e.g., robbery).

– Duress may not be used as a defense where the defendant recklessly placed himself in a situation in which it was probable that he would be subject to duress (e.g., by joining a dangerous gang that is rumored to kill any member that defects).

Question 14

reasonable mistake/ignorance of fact

Answer 14

• Reasonable Mistake of Fact: a reasonable mistake that negates an element of the crime is a defense to all crimes, except strict liability crimes

• Example: A, who is dressed in a deer costume, is walking through the woods during hunting season. B, a hunter, shoots and kills A, reasonably believing that A was a deer. Is B guilty of murder?
»> No. B is not guilty of any type of murder because his mistake was reasonable.

Question 15

unreasonable mistake/ignorance of fact

Answer 15

• Unreasonable Mistake of Fact: an unreasonable mistake that negates an element of the crime is a defense only to specific intent crimes

– Example: A, who is dressed in a business suit, is walking through the woods during hunting season. B, who has a clear view of A, shoots and kills A believing that A was a deer. The jury finds that B’s belief was honest but unreasonable. Is B guilty of first degree murder or common law (second degree) murder?
»> B is not guilty of first degree murder, a specific intent crime, because B thought (albeit unreasonably) that A was a deer.
»> B is guilty of common law or second degree murder, both of which are malice crimes, because B’s mistake of fact was unreasonable.

Question 16

mistake/ignorance of law (and exceptions)

Answer 16

• Mistake or ignorance of law is rarely a defense; there are a few minor exceptions:
»> the law was not adequately published;
»> the accused was relying on a judicial opinion that was later overturned;
»> knowledge of the law is an “element” of the offense (which is quite rare).

• Example: A is charged with violating a statute that prohibits sale of a pistol to “a person known to be a felon.” A sells a pistol to B, who A knows has been convicted of assault. A mistakenly believed that assault was a misdemeanor; in fact, it was a felony. Is A guilty of violating the statute?
»> No, since A believed assault was a misdemeanor, he lacked the mental state required for conviction.

• As a general rule, advice of counsel is not a valid defense. However, if reliance on an attorney’s advice negates the necessary mental state (e.g., knowingly) of the crime, the defendant should be acquitted.

Question 17

consent

Answer 17

• Consent is generally not a defense to a crime, unless it negates an element of the offense and then only as to
»> rape and kidnapping (in certain situations)
»> minor assaults and batteries (e.g., a legal boxing match), but not serious batteries or homicide

• Some statutory crimes require the prosecution to prove non-consent.

Question 18

entrapment

rule; example

Answer 18

• The defendant must show that the intent to commit the crime originated with law enforcement and defendant was not predisposed to commit the crime prior to government contact

– Entrapment defense allows the prosecution to introduce character evidence under FRE 405(b) (i.e., character as an element of the defense)

– Example: A is walking the streets looking to purchase some cocaine. B, a police officer, hears of A’s quest. B approaches A and offers to sell A cocaine. A agrees to buy some, at which point B arrests A. At trial, A raises the defense of entrapment. Will this defense succeed?
»> No. The defense will be rejected because A was predisposed to buy the drugs.