W4 - necessity Flashcards
What ar the 7 elements of necessity?
Violation must produce a lesser evil
Danger must be imminent/immediate
Act cannot be responsible for creating the necessity
No other reasonable lawful alternative to the act
Actor must reasonably believe that breaking the law will avoid the imminent harm
Actor’s criminality must cease after the threat has been avoided
The defence is not permitted if it would defeat a legislative purpose to exclude the defence
Why do prison escapees often fail to claim necessity?
Because they often do not turn themselves in after breaking out/ending the criminality after the threat is avoided
Can necessity be a defence for civil disobedience?
Only if it is directly tied to the nature of valid civil disobedience (ex. noise violations for protested). If indirectly linked, then it is not a defence
What are the 3 elements of duress?
They or a third party (like a family member)faced an imminent threat from which there was no reasonable means of escape
The threat was so severe that a reasonable person could not resit it, this vitiating their autonomy
The actor was not blameworthy in creating the circumstance that lead to the threat
Does common law recognize duress?
yes, and MPC does too
Can duress be a defence to murder?
Not under common law, but the MPC does allow it
For duress, how serious must the threat be?
“people of reasonable firmness” must be unable to resit the criminal activity
intoxication under common law would enhance culpability unless ___
the crime has a specific mens rea requirement
What are the 2 ways to prove an insanity defence? M’naighten test
- He did not know the nature and quality of her actions (cognitive incapacity) thinks they do one thing while doing another OR
- Did not know the difference between right and wrong (moral incapacity)
What is an alternative to the M’Naughten test?
if they suffer from an irresistible impulse that makes them unable to control their behaviour
