Crim Law final

justifications

“RIGHTFUL, defensible, warranted or

SANCTIONED BY LAW; that which can be shown to be

sustained by law.”

Self Defense

1. A person May use (or threaten to use) force;

2. To the extent the person REASONABLY BELIEVES it

is NECESSARY;

3. To defend the person against what the person

REASONABLY BELIEVES to be ANOTHER PERSON’S

IMMINENT USE OF UNLAWFUL FORCE.

Self defense - Force

Force is limited to that degree which is objectively

reasonable under the circumstances.

- BOUND TO USE A LESSER DEGREE OF FORCE

WHEN IT WILL RESOLVE THE THREAT.

Self defense- force 2

A person may use the THREAT OF FORCE as a

defensive measure under the SAME CIRCUMSTANCES AS

FORCE MAY BE USED FOR SELF DEFENSE

Self Defense disqualifications

- Provoking a fight with intent to respond with force against

the provoked person.

- When attempting to commit, committing, or fleeing after

the commission or attempted commission of a felony

- WAS THE AGGRESSOR or was engaged in a combat by

agreement.

Common Law- retreat

COMMON LAW IMPOSED A DUTY TO “RETREAT TO THE

WALL,” i.e. as far as one safely could in lieu of or before

resorting to deadly force.

Defense of Home

Defense of Home

The Castle Doctrine

The home is a “castle.” It is a place of refuge and protection

from which a person is not required to retreat in the face of

an unprovoked, deadly attack.

A person is “under no duty to take to the fields and

highways, a fugitive from his own home.”

Force in defense of OTHER PROPERTY

A person is justified in using force, OTHER THAN DEADLY

FORCE, against another when and to the extent that the person

reasonably believes that force is necessary to PREVENT OR

TERMINATE ANOTHER PERSON'S CRIMINAL INTERFERENCE

WITH REAL PROPERTY OR PERSONAL PROPERTY

General defense of necessity

A person is JUSTIFIED IN COMMITTING A WRONG

constituting an offense when:

1) under a reasonable belief;

2) that doing so is necessary in order to;

3) PREVENT OR AVOID AN IMMINENT GREATER

WRONG (EVIL).

BUT, BUT, BUT: ONLY JUSTIFIED IN DOING WHAT IS

TRULY NECESSARY.

Consent

Some jurisdictions allow knowing and voluntary consent

to justify minor crimes against persons, e.g. simple

battery.

NOT VALID FOR OFFENSES INVOLVING SERIOUS

INJURIES. MAY NOT CONSENT TO HOMICIDE,

AGGRAVATED BATTERY, GRIEVOUS BODILY HARM,

ETC.

Excuses

Defenses which ACKNOWLEDGE THE WRONGFUL

NATURE OF ACTIONS but

which RELIEVE DEFENDANTS OF CRIMINAL

RESPONSIBILITY FOR THE ACTIONS.

Insanity

Insanity

Tests / Standards

defect of reason caused by a disease of the mind.

2. At the time of the crime and because of the defect the

defendant did not know:

a. The nature and quality of the act,

OR (THIS IS “OR,” IT IS NOT “AND!”)

b. That the act was wrong. (Older Rule)

Right and Wrong (McNaughton) Test standards

1. A defect of reason caused by a disease of the mind.

Disease: Psychosis, e.g. schizophrenia and paranoia.

DOES NOT GENERALLY INCLUDE PERSONALITY

DISORDERS, E.G. PSYCHOPATHS AND SOCIOPATHS.

DOES INCLUDE mental retardation or brain damage

if sufficiently severe.(Older Rule)

Tests / Standards

SUBSTANTIAL CAPACITY (MPC)

. A mental disease or defect;

2. At the time of the crime and because of the disease or defect,

a LACK OF SUBSTANTIAL (NOT TOTAL, BUT SUBSTANTIAL)

CAPACITY to:

a. Appreciate the criminality of the conduct;

OR

b. To conform conduct to the requirement of law.

Right and Wrong (Federal)

1. A defect of reason caused by a SEVERE disease of the mind.

2. At the time of the crime and because of the defect the defendant

did not know:

a. The nature and quality of the act,

OR

b. That the act was wrong.

THIS HAS A DIFFERENT MENTAL DISEASE / DEFECT ELEMENT

THAN McNAUGHTON TEST!

Insanity

Burden of Proof

1. Majority rule: As an affirmative defense, once defendant

raises the issue, the government must prove the defendant was

NOT insane. Standards vary:

a. Beyond a reasonable doubt

b. Clear and convincing evidence.

c. Preponderance of the evidence.

2. FEDERAL PRACTICE. DEFENDANT IS PRESUMED

SANE. DEFENDANT MUST PROVE INSANITY BY CLEAR

AND CONVINCING EVIDENCE.

Insanity

Tests / Standards

Irresistible Impulse

1. A mental disease or defect;

2. At the time of the crime and solely because of the

disease or defect:

3. The defendant lacked the capacity to conform his / her

conduct to the requirements of law (i.e. THE DISEASE

OVERBEARS THE WILL TO REFRAIN FROM DOING

WRONG, EVEN WITH KNOWLEDGE OF THE WRONG.)

Excuses

Infant Capacity

Common Law

UNDER 7: Person had NO capacity to commit a crime.

FROM 7 TO 14: A person is presumed to lack capacity.

Prosecution may rebut / overcome presumption by clear

proof that the person could appreciate wrongfulness of act.

Presumption lessened with age.

14 AND OVER: Same capacity as an adult and

accountable as an adult.

Excuses

Immaturity - Contemporary Law

Utah Code 76-2-301

“76-2-301. Person under 14 years old not criminally

responsible.

A PERSON IS NOT CRIMINALLY RESPONSIBLE FOR CONDUCT

PERFORMED BEFORE HE REACHES THE AGE OF 14 YEARS.”

Duress or Compulsion

“[T]he doing of a prohibited act is not a crime if

REASONABLY BELIEVED TO BE NECESSARY TO

SAVE THE ACTOR FROM IMMINENT DEATH OR

SERIOUS BODILY HARM.

Duress and compulsion

Exception: DURESS DOES NOT EXCUSE THE

INTENTIONAL KILLING OF AN INNOCENT PERSON*.

THE “INEXCUSABLE CHOICE” DOCTRINE.

*“INNOCENT” MEANS THE PERSON IS NOT

THREATENING IMMINENT DEATH OR GBH.

Voluntary Intoxication

“Voluntary intoxication, whether caused by alcohol or drugs, is not a

defense.” I.e., it is not an affirmative defense or excuse.

“However, evidence of any degree of voluntary intoxication may be

introduced for the purpose of RAISING A REASONABLE DOUBT AS TO

THE EXISTENCE OF ACTUAL KNOWLEDGE, SPECIFIC INTENT,

WILLFULNESS, OR A PREMEDITATED DESIGN TO KILL, if actual

knowledge, specific intent, willfulness, or premeditated design to kill is an

element of the offense.”

A failure of proof “defense.

Excuses

INVOLUNTARY INTOXICATION

Contemporary Law

Involuntary intoxication: Actually involuntary; when

substances are ADMINISTERED AGAINST THE WILL

AND WITHOUT CONSENT of the actor OR WITHOUT

THE KNOWLEDGE of the actor.

Mistake of Fact: RCM 916

A mistake of fact excuses liability if:

1. At time of the offense;

2. THE ACTOR HAD AN INCORRECT BELIEF OF THE

TRUE CIRCUMSTANCES;

3. As a result of ignorance or mistake;

4. Such that, if the circumstances were as the actor believed

them to be, the actor would be not guilty of the offense

Mistake of Fact: RCM 916 (2)

A mistake of fact excuses liability if:

4. Such that, if the circumstances were as the actor believed

them to be, the actor would be not guilty of the offense.

UGH!!

This only applies when/if the actor believes what he is doing

is lawful NOT WHEN he believes he is doing something

unlawful.

REMEMBER: MISTAKE OF FACT IS NO DEFENSE TO AN

ATTEMPT TO COMMIT A CRIME!

Mistake of Fact (3)

RED ALERT 1: “If the ignorance or mistake goes to an

element requiring premeditation, SPECIFIC INTENT,

willfulness, or knowledge of a particular fact, the

ignorance or mistake need only have existed in the mind

of the [actor].

AN HONEST BELIEF. IT NEED NOT BE

REASONABLE

Mistake of fact (4)

RED ALERT 2: “If the ignorance or mistake goes to

any other element requiring only GENERAL INTENT or

knowledge, the ignorance or mistake must have

existed in the mind of the [actor] and must have been

reasonable under all the circumstances.”

MISTAKE OF FACT MUST BE BOTH HONEST AND

REASONABLE.

Entrapment(1)

Subjective Test

1. As a result of government action;

2. The actor committed an offense;

3. He would not have committed absent the

government action.

WHERE DID THE INTENT ORIGINATE? IF THE

ACTOR WAS PREDISPOSED TO COMMIT THE

OFFENSE, NO ENTRAPMENT

Entrapment (2)

1. Intent to commit the offense originates with the

government;

2. And government actions would tempt an ordinarily law-

abiding person to commit the offense.

Did the government SEDUCE AN INNOCENT PERSON INTO

COMMITTING AN OFFENSE SHE WOULD NEVER HAVE

OTHERWISE COMMITTED? PREDISPOSITION REMAINS

RELEVANT!

Entrapment (3)

Majority (and Federal) rule:

- Subjective test.

Minority rule:

- Objective test.

REMEMBER: PREDISPOSITION TO COMMIT THE

CRIME IS THE KEY TO DETERMINING WHETHER

ENTRAPMENT OCCURRED.

Majority (and Federal) rule:

Offenses Against Order and Morals

VAGRANCY

Void for vagueness. It isn’t. crime to be poor.

Loitering

gone Void for vagueness. but this is usually on someone’s property.

Disorderly Conduct

INTENDING to cause public inconvenience, annoyance, or

alarm, OR RECKLESSLY CREATING A RISK THEREOF,

1. Engages in fighting or in violent, tumultuous, or

threatening behavior; OR

2. Makes unreasonable noises in a public place or public

meeting; OR

3. Makes unreasonable noises in a private place which can

be heard in a public place; OR

4. Obstructs vehicular or pedestrian traffic.

Disorderly conduct (2)

1. REFUSE TO COMPLY WITH THE LAWFUL ORDER

OF A LAW ENFORCEMENT OFFICER TO MOVE FROM

A PUBLIC PLACE,

2. Knowingly create a hazardous or physically offensive

condition, by any act which serves no legitimate purpose.

Riot (1)

An actor commits riot if the actor:

1. SIMULTANEOUSLY WITH TWO OR MORE OTHER

INDIVIDUALS ENGAGES IN VIOLENT CONDUCT,

KNOWINGLY OR RECKLESSLY CREATING A

SUBSTANTIAL RISK OF CAUSING PUBLIC ALARM

Riot (2,3,4)

2. Assembles with two or more people with the purpose of engaging soon thereafter on violent conduct, knowing that two or more individuals have the same purpose. 

3. —- SAME CONTENTS as before but this one is committing an offense against a person or a property of another person

4. Refusing to comply with a lawful withdrawal according to, during, or immediately following riot type 1,2,3, or 4. 

Riot - Utah Code 76-9-101

A FELONY IF: THE ACTOR CAUSES SUBSTANTIAL OR

SERIOUS BODILY INJURY; SUBSTANTIAL PROPERTY

DAMAGE OR COMMITS ARSON; OR WAS IN

POSSESSION OF A DANGEROUS WEAPON, i.e., a firearm;

or

an object that in the manner of its use or intended use, is

capable of causing death

or serious bodily injury.

Review - Public Order Morals

Prostitution - simplified to the UGH level....

1) The prostitute - sells sex acts for money.

(2) The patron - buys sex acts for money.

(3) The “pimp” or “madam” - arranges sex acts for money.

Utah law criminalizes ALL of this behavior!

Crimes Against the State

Treason

U.S. Constitution, Article III Section 3.

“Treason against the United States, shall consist only in

levying War against them, or in adhering to their Enemies,

giving them Aid and Comfort.”

THERE IS ONE CRIME DEFINED IN THE CONSTITUTION

- AND THIS IS IT!

Treason (1)

Treason…shall consist…in levying War against [the U.S.]

1. ASSEMBLY OF A GROUP OF PEOPLE (I.E.

ORGANIZING PEOPLE INTO A MILITARY ARRAY,

FORMATION, ETC.), AND

2. EMPLOYING FORCE OR VIOLENCE AGAINST THE

U.S.

THIS IS A FORM OF TREASON - IT IS NOT A FORM OF

SEDITION!

Treason (2)

1. ADHERING to [the enemies of the U.S.],

AND

2. Giving them AID AND COMFORT.

GOT TO HAVE BOTH!!!

Seditious conspiracy

Two or more persons CONSPIRE,

2. a. To overthrow, put down, or to destroy by force the

Government of the United States, or

b. To levy war against them, or

c. To oppose by force the authority thereof, or by force to

prevent, hinder, or delay the execution of any law of the

United States, or by force to seize, take, or possess any

property of the United States. PLAN IT!!

Sedition (2)

Knowingly or willfully ADVOCATE, ABET, ADVISE, OR

TEACH the duty, necessity, desirability, or propriety of

overthrowing or destroying the government of the U.S. …

or of any political subdivision therein, by force or violence,

or by the assassination of any officer of any such

government PREACH IT!!!!

sedition (3)

With intent to cause the overthrow or destruction of any

such government, PRINTS, PUBLISHES, EDITS, ISSUES,

CIRCULATES, SELLS, DISTRIBUTES, OR PUBLICLY

DISPLAYS ANY WRITTEN OR PRINTED MATTER

advocating, advising, or teaching the duty, necessity,

desirability, or propriety of overthrowing or destroying any

government in the United States by force or violence, or

attempts to do so. PRINT IT!!

Sedition (4)

Organize or help or attempt to ORGANIZE ANY SOCIETY,

GROUP, OR ASSEMBLY OF PERSONS who teach,

advocate, or encourage the overthrow or destruction of any

such government by force or violence; or becomes or is a

member of, or affiliates with, any such society, group, or

assembly of persons, knowing the purposes thereof.

ORGANIZE IT!!

Espionage (peacetime)

“Whoever, with intent or reason to believe that it is to be used

to the injury of the U.S. or to the advantage of a foreign nation,

COMMUNICATES, DELIVERS, OR TRANSMITS, OR

ATTEMPTS TO COMMUNICATE, DELIVER, OR TRANSMIT

[INFORMATION], TO ANY FOREIGN GOVERNMENT, or to

any faction or party or military force within a foreign country or

to any representative, officer, agent, employee, subject, or

citizen thereof….”

Espionage (wartime)

“Whoever, in time of war, with intent that the same shall

be communicated to the enemy, COLLECTS, records,

publishes, or communicates, or ATTEMPTS TO ELICIT

ANY [DEFENSE RELATED] INFORMATION….”