Selected Defenses

Question 1

Intoxication in Non-MPC Jx’s

Answer 1

1. Voluntary intoxication (People v. Hood)
   
   1. General intent crimes: not allowed as a defense
      
      1. An offense for which the only mens rea required was a culpable state of mind
      2. Ex: second degree murder, rape, and assault
   2. Specific intent crimes: allowed as a possible defense on the specific element
      
      1. Where a subjective mental state is an element of the crime to be proved
      2. Even though you can present it, it will usually not work
      3. D must be very drunk
      4. Ex: first degree murder, burglary, larceny, and assault with intent to commit a murder
         
         1. This defense may reduce a crime from one degree with a specific intent to a lesser crime (first degree to second degree, or robbery to larceny)
   3. Unconsciousness: only as evidence that defendant could not have performed the act due to intoxication
      
      1. Not a defense that he committed the act involuntarily
   4. Insanity: only based on long-term effects of drug/alcohol abuse
      
      1. The law distinguishes between mental impairment that does not extend beyond the period of voluntary intoxication, for which no defense is available, and insanity resulting from long-term use of drugs or alcohol
2. Involuntary intoxication
   
   1. All of these defenses can be presented, including the insanity defense

Question 2

Intoxication in MPC Jx’s

Answer 2

1. Voluntary intoxication
   
   1. Can only be used as a defense to negate “purpose” and “knowledge” mens reas
   2. Can’t present the defense for “recklessness” or “negligence”
   3. Does not distinguish between general intent and specific intent crimes
      
      1. A person is not guilty if, as the result of intoxication, he lacked the state of mind required in respect to an element of the crime
   4. Unconsciousness: a person who is unconscious as the result of intoxication may raise an involuntariness claim
2. Involuntary intoxication
   
   1. Can use these same two defenses, and also the insanity defense

Question 3

Insanity

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M’Naughten Test (followed in CA)

Answer 3

Insanity at the time of the alleged crime

1. Most states, including CA, follow some form of the M’Naughten test for insanity
   
   1. M’Naughten standard for insanity (right/wrong test)
      
      1. Where defendant, due to mental disease or defect:
         
         1. Did not know what he was doing; or
         2. Did not know what he was doing was wrong
2. Utah essentially eliminated the insanity defense (State v. Herrera)
   
   1. Eliminated prong 2 of the M’Naughten test, which essentially eliminates the test entirely, because prong 2 is the prong that everybody wins under
3. Criticisms of the M’Naughten test:
   
   1. The test is considered grossly unrealistic because, by its terms, it does not recognize degrees of incapacity
   2. The test places unrealistically tight shackles upon expert psychiatric testimony, because it does not permit testimony on any matter that falls outside the narrow confines of the test
   3. The test disregards mental illnesses that affect volition, and disregards the possibility that a person may be able to distinguish right from wrong, and yet be unable to control her behavior

Question 4

Alternative Tests for Insanity

Answer 4

1. Irresistible Impulse Test
   
   1. A person is insane if, at the time of the offense, she acted from an irresistible and uncontrollable impulse
   2. This broadens the scope of the M’Naughten test by adding a third prong, which encompasses mental illnesses affecting volitional capacity
2. Durham Rule (aka: Product Test)
   
   1. A person is excused if her unlawful act was the product of a mental disease or mental defect
3. American Law Institute (Model Penal Code) Test
   
   1. A person is not responsible if he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law
   2. Based on the M’Naughten test, but not as demanding
4. Federal Test
   
   1. Defendant must show by clear and convincing evidence that as a result of a severe mental disease or defect, she was unable to appreciate (1) the nature and quality of her conduct; or (2) the wrongfulness of her conduct
   2. Basically the same as the M’Naughten test, but slightly broader because of the term “appreciate”

Question 5

Incompetency at the time of trial (Dusky v. US)

Answer 5

1. Defendant must have:
   
   1. The capacity to consult with his attorney with a reasonable degree of rational understanding, and
   2. A rational as well as factual understanding of the proceedings against him
2. If you are acquitted by reason of insanity, you are automatically admitted to an insane ward, but the issue is when you will be released
   
   1. The Constitution permits the government, on the basis of the insanity judgment, to confine him to a mental institution until such time that he has regained his sanity OR is no longer a danger to himself or society (Foucha v. Louisiana)

Question 6

Insanity at the time of scheduled execution

Answer 6

1. Sanity requires that the defendant be aware of the punishment he is about to suffer and why he is to suffer it (Ford v. Wainwright)
   
   1. If a defendant doesn’t understand why he is going to die, it’s not fair to execute them
   2. Defendant must have an opportunity to present evidence on the question and the opportunity to cross-examine experts
      
      1. The arbiter should be a neutral party, and as long as you have a neutral arbiter and the opportunity to present evidence, it shouldn’t be necessary to cross-examine experts
2. Defendant must have a rational understanding of the reasons for the execution (Panetti v. Quarterman)
3. Eighth Amendment Rule: you can’t execute somebody who has become insane

Question 7

Self Defense: Elements

Answer 7

1. Honest belief that is
2. Objectively reasonable in light of the surrounding circumstances
3. That one is in imminent peril
4. Of death or serious bodily harm
5. From an unlawful use of force (that defendant did not provoke through aggression)
6. That makes use of deadly force necessary
   
   1. In a majority of jurisdictions, however, defendant need not retreat

Question 8

Self Defense: Initial Aggressor

Answer 8

1. A deadly aggressor is a person whose acts are reasonably calculated to produce fatal consequences
2. One forfeits his right to self-defense if he provokes the conflict or is the initial aggressor in it (U.S. v. Peterson)
3. If you are the initial aggressor, you have a duty to retreat even if you are in your own castle
   
   1. If you started the fight, try to retreat but can’t, you are entitled to self-defense again

Question 9

Self Defense: Duty to Retreat

Answer 9

1. At common law, there was a duty to retreat
2. Majority rule: one may stand his ground and use deadly force whenever it seems reasonably necessary to save himself
   
   1. The majority of jurisdictions apply a no retreat rule
3. Minority rule: an innocent person threatened by deadly force must retreat rather than use deadly force if he is aware that he can do so in complete safety
4. Castle doctrine: a non-aggressor is not ordinarily required to retreat from his dwelling, even though he knows he could do so in complete safety, before using deadly force in self-defense
5. There is no stand your ground legislation in CA, and the standard jury instruction says you have no duty to retreat

Question 10

Self Defense: Reasonable under the circumstances

Answer 10

1. Self-defense requires not only that they honestly believe it, but an objectively reasonable person would believe it (State v. Simon)
2. A person is justified in the use of force against an aggressor when he reasonably believes such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force
   
   1. A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief
3. May take into consideration an actor’s physical characteristics in determining how a reasonable person would respond to a physical threat, but not the actor’s mental or emotional characteristics
4. Past violence from the victim toward the defendant is relevant both for the honest belief and the objective reasonableness in his belief
5. Prior aggression of the victim towards the defendant is taken into account

Question 11

Self Defense: Battered Woman’s Syndrome

Answer 11

1. Must use an objective test – how a reasonably prudent battered wife would perceive the aggressor’s demeanor (State v. Stewart)
2. Majority rule (CA): Battered woman’s evidence can be considered for the purpose of determining whether or not the defendant held the subjective honest belief AND in evaluating the objective reasonableness requirement
   
   1. Minority rule: Only allows the evidence in proving honest belief, but not for proving the objective standard (People v. Humphrey)
   2. Some courts say that you should not take the evidence into account at all

Question 12

Self Defense: Imperfect self defense

Answer 12

One who kills another because he unreasonably believes that factual circumstances justify the killing is guilty of manslaughter, rather than murder

Question 13

Defense of Another

Answer 13

1. Alter ego rule: must step into the shoes of another
   
   1. If they don’t have the right to self defense, then you don’t have the right for defense of another
   2. This rule has been abolished
2. Reasonable appearance rule: an intervenor may use force to the extent that such force reasonably appears to the intervenor to be justified in defense of the third party (Graves v. US)
   
   1. An intervener (or defender of third persons) is entitled to use the degree of force reasonably necessary to protect a third person on the basis of the facts as the intervener, not the victim, reasonably perceived them
   2. This is the majority rule
3. A person is justified in using deadly force against another when he reasonably believes such force is necessary to protect a third person if A REASONABLE PERSON IN THE THIRD PERSON’S SITUATION WOULD NOT HAVE RETREATED, and he reasonably believes that his intervention is immediately necessary to protect the third person (Hughes v. State)
4. Defense of property: you can defend your property with non-deadly force

Question 14

Consent

Answer 14

Consent is no defense to murder

Consent is no defense to an assault except in sporting events where the conduct is within the scope of what is allowed in that sport (People v. Samuels)