Kaplan Pgs 354-361 Defenses Flashcards
Why is it easier to establish the MPC insanity than other insanity test?
Because MPC does not require the total or absolute loss of cognitive ability or volition. It only requires that the defendant lacked substantial capacity in those areas.
D’s are presumed to be sane until what?
They raise an insanity defence
What is the standard that the defendant must meet in order to prove insanity?
He must prove it by clear and convincing evidence (federally)
- it must be proven by a preponderance of the evidence (in most states)
What is diminished capacity?
Something short of insanity which shows that as a result of a mental defect the defendant did not have the state of mind needed as an element of the offence. This defence is used to negate a specific mental state that is required for the crime
Intoxication involves what kind of things?
Alcohol and narcotic drugs
When can intoxication be a defence to a crime?
If it negates the existence of an element of the crime
When is voluntary intoxication a defense?
Only to specific intent crimes. It is not a defence for general intent crimes and does not negate recklessness, negligence, or strict liability
How does involuntary intoxication work?
It is treated the same way that insanity is treated
If a definite drink himself silly, then snack on the victims yacht and the victim ordered the defendant off the boat, and then the defendant strangled the victim in a rage failed fury, would that be excused?
No, because this involves voluntary intoxication and a general intent crime
In a common law jurisdiction, a person that is over the age of 14 is held to what standard?
An adult standard
What are things that count as justification?
Self defence defence of a third person – defence of property – necessity – law-enforcement defences like: police, private citizens, resisting unlawful arrest Dash Doris – public duty – domestic authority
If an act is considered to be justified, what is the end result?
No crime
What are the two important things to remember for self-defense?
The force must be proportional to the initial attack
– the initial attack must be wrongful
What is considered to be deadly force?
Force that threatens death or serious bodily harm
When can deadly force be used in self-defense?
Only in response to an attack that threatens death or great bodily injury
What is non-deadly force?
Force the only threaten bodily harm
What is considered to be reasonable force?
The amount of force that is necessary to avoid the threatened harm. So if non-deadly force would stop a deadly attack, responding with deadly force is not reasonable
What is an aggressor?
A person who struck the first blow or commits a crime against the victim
What are the two ways that an aggressor can regain the right of self-defense?
On complete withdrawal that is perceived by the other party
– if the victim escalates the force from that of the initial aggression
If a person did not initiate the conflict, does he have a duty to retreat in the face of a deadly attack?
Generally most or six and say you should retreat before using deadly force unless:
– retreat cannot be done safely
– the defendant is in his own home, vehicle, or workplace
can self-defence be used if you kill someone to retaliate or seek revenge for a wrongful attack once the attack is over?
Never
What is the focus for defence of others?
The reasonableness of the defendants belief that the other person was being unlawfully attacked. If the defendant reasonably but mistakenly use lethal force against the victim Supertek the third person, the defendant can still claim the justification of defence of others. Although the minority rule is that he has no more right to use deadly force than the third person had
Must be a special relationship with someone before you can claim defence of others as a justification?
No, you can use deadly force to protect a total stranger
When is defence of property allowed?
You can use reasonable non-deadly force to defend your property from that, destruction, or trespass if you have a reasonable believe that the property is in immediate danger and you use no greater force than necessary
Are you justified in using non-deadly force to defend your property if a request to desist would’ve been enough?
No, because you’re only allowed to use the force that is reasonably necessary
Can you ever use deadly force to defend property?
No
What does defaecation applies to military personnel that are acting within their duties into public executioners?
Necessity
In what situation does the defence of necessity not work?
If it is the defendants fault because he created the perilous situation
What are the law-enforcement defenses?
Dash police
– private citizens
– resisting unlawful arrest
How much force is a police officer allowed to use?
– The amount of non-deadly force that can reasonably believes necessary to make a lawful arrest or to prevent the escape of an arrested
– he can use deadly force only to prevent the commission of a dangerous felony or to arrest someone that he reasonably believes has committed a felony and it is reasonably necessary
Difference between a police officer in a private citizen making a mistake in the use of deadly force?
Police officers may be justified, but private citizens will not be
What is the general rule for when an individual can resist lawful arrest?
Usually only if he doesn’t know that the other person is a police officer. Same is true if the arrest was made with excessive force.Some decisions allow you to use reasonable non-deadly force to resist an unlawful arrest, but the minority of jurisdictions do not
In order for the rest to be a justification, where must the threat come from?
A human force, not a force of nature
What is involved in public and duty?
A police officer, official, or private citizen that is assisting a police officer can use reasonable force against someone else to take the property of another as long as he’s acting within his authority under the law, according to a court order, or process that is valid or that he reasonably believes is valid
What is the rule for the amount of force that a parent is allowed to use?
A parent of a minor, or anyone acting in loco parentis, can use reasonable force on the child to promote his welfare
How do you determine what is reasonable when it comes to parents disappointing their child?
Based on the child’s age, sex, health, and misconduct according to the totality of the circumstances
When can mistake of fact be a defense?
If it negates a mental element for the crime. This means that there would be no crime if the facts were as the defendant thought they were
– For general intent crimes: the mistake must be reasonable
– for specific intent crimes: it does not have to be reasonable as long as it is honest
Is consent from the victim a defence to a crime?
Only if it negates a specific element of the offense. Like in rape or kidnapping
What is condonation?
When the victim forgives the defendant. This is not a defence
