Miscellaneous Defenses

Question 1

Necessity

Answer 1

Valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society

-Objective standard: D’s commission of the crime must be reasonably necessary; good faith alone is insufficient
-Exceptions: necessity is not available if either:
1) Crime committed results in the death of another, or
2) D caused the events giving rise to the necessity

Question 2

Duress

Answer 2

A valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family

-E.g. someone points a gun at D and threatenss to kill him if he does not rob a bank
-Exception: duress is not a defense to any intentional homicide crimes

Question 3

Consent

Answer 3

Consent of victim is generally not a defense, but may be available if it negates an element of the offense
-Never available for certain offenses (e.g. statutory rape)

Requirements: must be established that:
1) Consent was voluntarily and freely given;
2) Party was legally capable of consenting; and
3) No fraud was involved in obtaining consent

Question 4

Entrapment

Answer 4

An available defense to criminal liability if a law enforcement agent has induced D to commit a crime

Required elements:
1) Criminal design originated with law enforcement
-Criminal design = idea or plan for the crime

2) D was not otherwise predisposed to commit the crime
-D must have had no predisposition to commit the given crime prior to his contact with law enforcement
-Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment
-E.g. undercover officer buying drugs from dealer; officer merely provided opportunity for D to make a sale

Note: a very narrow defense; rarely effective because it is negated by any predisposition on D’s part
(As a result it is unlikely to be a correct MBE answer)

Question 5

Mistake of law

Answer 5

Almost never a defense
-Lacking awareness or knowledge that an act constitutes a crimes, even if reasonable, is not a defense to that crime

Exceptions: very rare, but can arise where either:
a) Reasonable reliance on an invalid statute
b) Mistake or ignorance negates an element of a crime requiring knowledge of the law

Question 6

Mistake of fact

Answer 6

Available as a defense only if it negates a requisite intent element (i.e., mens rea) for the crime
Note: Mistake includes ignorance

1) Specific intent: any mistake of fact is a defense
2) Malice and general intent: Only a reasonable mistake of fact is a defense
3) Strict liability (i.e. no intent): Mistake of fact is never a defense