DEFENSES

Insanity – M’Naghten Rule

The defendant is entitled to acquittal if (1) a disease of the mind (2) caused a defect of reason (3) such that the defendant lacked the ability at the time of their actions to either know the wrongfulness of their actions or understand the nature and quality of their actions

Insanity – Are delusions or loss of control defenses if the rest of the M’Naghten Rule IS satisfied?

YES

Insanity – Irresistible Impulse Test

A defendant is entitled to acquittal only if, because of a mental illness, they were unable to control their actions or conform their conduct to the law

Insanity – Durham Test

A defendant is entitled to acquittal if the crime was the product of their mental illness and would not have been committed but for the disease

Insanity – Which state is the Durham Test ONLY used in?

New Hampshire

Insanity – ALI/MPC Test

A defendant is entitled to acquittal if they had a mental disease or defect, and, as a result, they lacked the substantial capacity to either (1) appreciate the criminality of their conduct, OR (2) conform their conduct to the requirements of law

Insanity – Burden of Proof – Modern Law

The defendant must prove their insanity by a preponderance of the evidence

Insanity – Burden of Proof – MPC

The prosecution must prove the defendant was sane beyond a reasonable doubt

Insanity – Burden of Proof – Federal Law

The defendant must prove insanity by clear and convincing evidence

Insanity – Must the defendant raise the insanity defense at the arraignment when the plea is taken?

NO

Insanity – Does pleading not guilty waive the right to the insanity defense?

NO

Insanity – Pretrial Psychiatric Examination

If the defendant raises the insanity issue, they may NOT refuse to be examined by a psychiatrist

Insanity – Mental Condition During Criminal Proceedings

Under the Due Process Clause, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, they are unable (2) to understand the nature of the proceedings being brought against them, OR (2) to assist their lawyer in the preparation of their defense

Insanity – Execution

A defendant may NOT be executed if they are incapable of understanding the nature and purpose of the punishment

Insanity – May a defendant acquitted by reason of insanity be committed to a mental institution that EXCEEDS the maximum period of incarceration for the offense charged?

YES

Insanity v. Diminished Capacity

Some states allow the defendant to assert that, as a result of a mental defect short of insanity, they did not have the mental state required for the crime charged

Voluntary Intoxication – General Rule

Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating

Voluntary Intoxication – What are the ONLY types of crimes that this defense is available to?

Specific intent crimes and crimes that require purpose or knowledge

Involuntary Intoxication – General Rule

Intoxication is involuntary only if it results from the taking of an intoxicating substance (1) without knowledge of its nature, (2) under direct duress imposed by another, OR (3) pursuant to medical advice while unaware of the substance’s intoxicating effect

Can involuntary intoxication be treated as a mental illness subject to acquittal if the defendant meets the required insanity test?

YES

Which crimes can involuntary intoxication be a defense to?

ALL of them

Involuntary Intoxication – Relationship to Insanity

Continuous and excessive drinking or drug use may bring on actual insanity, and the defendant may be able to claim both an intoxication defense and an insanity defense

Infancy – General Rule (Modern Law)

Generally, no child under the age of 13 or 14 can be convicted of a crime, but they can be found to be delinquent in special juvenile or family courts

Self-Defense – Nondeadly Force

A person without fault may use such force as the person reasonably believes is necessary to protect themself from the imminent use of unlawful force upon themself

Self-Defense – Nondeadly Force – Retreat

There is NO duty to retreat when using nondeadly force

Self-Defense – Deadly Force

A person may use deadly force in self-defense if the person (1) is without fault, (2) is confronted with unlawful force, and (3) reasonably believes that they are threatened with imminent death or great bodily harm

Self-Defense – Deadly Force – Retreat (MAJORITY)

Generally, there is no duty to retreat before using deadly force

Self-Defense – Deadly Force – Retreat (MINORITY)

Retreat is required before using deadly force if the victim can safely do so unless (1) the attack occurs in the victim’s own home, (2) the attack occurs while the victim is making a lawful arrest, or (3) the assailant is in the process of robbing the victim

Self-Defense – Rights of Aggressor

If one is the aggressor in the confrontation, they may use force in defense of themself only if (1) they effectively withdraw from the confrontation and communicate to the other their desire to do so, OR (2) the victim of the initial aggressor suddenly escalates the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw

Defense of Others

A defendant has the right to defend others if they reasonably believe that the person assisted has the legal right to use force in their own defense

Defense of Others – Is there a need for a special relationship between the defendant and the person in whose defense they acted?

NO

Defense of a Dwelling

A person may use nondeadly force in defense of their dwelling when, and to the extent that, they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling

Defense of a Dwelling – When CAN deadly force be used?

Deadly force may be used only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent a personal attack on themself or another in the dwelling, or to prevent an entry to commit a felony in the dwelling

Defense of Possession of Property

Deadly force may never be used in defense of property, but reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference

Defense of Property – May force be used if a request to desist or refrain from the activity would suffice?

NO

Regaining Possession

A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker

Crime Prevention – Nondeadly Force

Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace

Crime Prevention – Deadly Force

Deadly force may be used only if it appears reasonably necessary to terminate or prevent a dangerous felony involving risk to human life

Use of Force to Effectuate Arrest – Police Officers – Nondeadly Force

Nondeadly force may be used by police officers if reasonably necessary to effectuate an arrest

Use of Force to Effectuate Arrest – Police Officers – Deadly Force

Deadly force is reasonable only if it is necessary to prevent a felon’s escape and the police officer reasonably believes that the felon threatens death or serious bodily harm

Use of Force to Effectuate Arrest – Police Officers – Bystanders

A bystander summoned by a police officer to assist them in making an arrest has the same authority to use force as the officer, and the bystander’s good faith assistance is justified even if it turns out that the officer was exceeding their authority

Use of Force to Effectuate Arrest – Private Persons – Nondeadly Force

A private person has the same right to arrest as a police officer, EXCEPT (1) the private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and (2) the private person has reasonable grounds to believe the person arrested has in fact committed the crime

Use of Force to Effectuate Arrest – Private Persons – Deadly Force

A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made

Resisting Arrest – Nondeadly Force (MAJORITY)

Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest

Resisting Arrest – Nondeadly Force (MPC)

One CANNOT resist a known police officer

Resisting Arrest – Deadly Force

Deadly force may be used only if the person does not know that the person arresting them is a police officer

Duress

It is a defense if the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon them or a member of their family or third person if the defendant did not commit the crime

Which crime does duress NOT apply to?

Intentional homicide

Duress – Threats to Property (COMMON LAW)

Threats to property are not sufficient to give rise to a duress offense

Duress – Threats to Property (MPC)

Threats to property do give rise to a duress defense assuming that the value of the property outweighs the harm done to society by commission of the crime

Necessity

It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime

Necessity – Is a subjective good faith belief sufficient?

NO

Necessity Limitation – Death

Causing the death of another person to protect property is NEVER justified

Necessity Limitation – Fault

The defense of necessity is not available if the defendant is at fault in creating the situation requiring that they choose between two evils

Necessity v. Duress

Duress will always involve a threat by a human

Mistake/Ignorance of Fact

Mistake of fact is relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime

Is mistake of fact relevant for strict liability crimes?

NO

Mistake/Ignorance of Fact – Reasonableness

If mistake is offered to disprove a specific intent, the mistake need not be reasonable, but if it is offered to disprove a non-specific intent crime, it must have been a reasonable mistake

For which crimes will an unreasonable mistake of fact be available for?

Specific intent crimes

Mistake/Ignorance of Law

Generally, it is not a defense that the defendant believed that their activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney

Mistake of Law – Reliance on an Attorney

If the reliance on an attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt

Mistake of Law – Exceptions

The defendant has a defense if (1) the statute proscribing their conduct was not published or made reasonably available prior to the conduct, (2) there was reasonable reliance on a statute or judicial decision, or (3) there was reasonable reliance on official interpretation or advice

Mistake/Ignorance of Law – Negating Intent

If the defendant’s mistake or ignorance as to a collateral legal matter proves that the defendant lacked the state of mind required for the crime, they are entitled to acquittal so long as it involves the elements of the crime and not the existence of a statute making the act criminal

Entrapment

Entrapment exists only if (1) the criminal design originated with law enforcement officers AND (2) the defendant was not predisposed to commit the crime prior to contact by the government

Does merely providing the opportunity for a predisposed person to commit a crime considered entrapment?

NO

Can a person be entrapped by a private citizen?

NO

Entrapment – Material Provided by Gov Agent

Under federal law, entrapment cannot be based solely on the fact that a government agent provided an ingredient for the commission of the crime, even if the material provided was contraband