Understanding Criminal Law Ninth Edition Joshua Dressler

Excludes the Model Penal Code Definitions and Relies on Common Law mixed with "Generally accepted" procedures.

Burden of Production

Burden of coming forward w the evidence.

Prosecutor always has this when it comes to the elements of the crime (ex. the 1(killing) of (2) another human being with (3) malice aforethought)

Defense has this for affirmative defenses
- Failure for them means no jury instructions.

Burden of Persuasion

Who bears the risk of failing to convince the jury that the factual claim is true?
- In Re Winship (Winship Doctrine) The presumption of innocence lies at the foundation of our criminal justice system and is demanded by Due Process.
- Regarding the defense of a crime, however, this may be allocated to a defendant (Patterson v. NY)
- Courts are very careful about subtly shifting the burden to the defendant (Martin v. OH)

Beyond a Reasonable Doubt

“a subjective state of near certitude of … guilt.”
- This does not include every kind of doubt // ever thing relating to human affairs after all is open to some imaginary doubt.
- It exists when the “state of the case … leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the charge."

Presumption

A court-established rule like:
Upon proof of Fact A, presume Fact B.
(“Whenever it is proen that a person fired a loaded gun @ some1, the fact finder must presume that the actor intended to kill the other person”)

Rebuttable Presumptions

“If Fact A proven, you must find Fact B unless the defendant disproves fact B by some quantum of evidence.”
- shifts burden of persuasion
- unconstitutional when crime of element charged (Sandstrom v. Montana)

Irrebuttable Presumption

legal assumption that cannot be challenged or disproven by any evidence, and the law treats it as conclusively true.
- ex age of criminal responsibility. children up until age X are presumed to be unable to form criminal intent

Permissive presumption

If fact A is proven, you may/might find fact B.
- As such, the jury may cross the inferential bridge (ex. phone in hand —may—> reckless intent
- The presumed fact, however, must more likely than not flow from the basic fact (there must be correlation … NOT something like: phone in hand —> likes apples). This depends on the specific facts of the case (Tot v. United States; County Court of Ulster v. Allen)

Actus Reus

(1) Voluntary act (or failure to act) that (2) causes (3) social harm.
- example: Adam (1) stabs Eve thereby (2) causing (3) Eve’s death.

Voluntary Act (Act)

Bodily movement; muscular contraction
- May not be voluntary per se. Does not include results (social harm)

Voluntary Act (Voluntary)

In the Actus Reus context, a movement of the body which follows our volition (ex. NOT reflexive actions, spams, seizures, or convulsions; NOT “wild acts ungoverned by the will and done unsubordinated to the agent’s conscious plans of action.”)
- Note that habitual unawareness is not covered here.
- Essential element of every criminal offense.
- NOT every act needs to be voluntary … just that you include a voluntary act (ex. driving a car knowing that you are prone to seizures; the seizure and ensuing crash are involuntary by the choice to drive the car IS). Time frame is bracketed by the mens rea which is required by the offense.
- See Robinson v. CA; Powell v. TX (act v status)

Status Offense

Offense that requires proof of a status (vagrancy or addiction) rather than conduct. Supreme Court has not looked kindly upon this kind of offenses.

Omission

General Rule: “Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another even if she can do so at no risk to herself and even if the person imperiled may lose her life in the absence of assistance” (Difference in criminal law between preventing and causing harm)
- Exceptions dictated by a “Duty to Act”

Duty to Act Principle

Exception to the general rule regarding omissions wherein there is a “Commission by Omission.”
- Example: Person w duty to report a fire may be convicted of criminal homicide if they fail to report it and someone dies.
- Wide breadth of duties to act:
> Status relationships
> Contracts
> Following an act (Creation of risk; voluntary assistance)
> Statutory (paying taxes; reporting child abuse; providing for minors)

Social harm

“The wrong in wrongdoing”
- The “negation, endangering, or destruction, or an individual group, or state interest which was deemed socially valuable.”
- May be either “Wrongful Conduct” or “Wrongful Results” or Both

Wrongful Conduct (social harm)

Crimes defined by the conduct. Harmful results not required. Example: Driving under the influence of alcohol. The crime is complete regardless of any damage to property or persons.

Wrongful Results (social harm)

An offense defined in terms of a prohibited result. Example: Common law murder. The “social harm” is the death of another human being. Although it DOES occur because of some conduct … the nature of the actor’s conduct is irrelevant. It doesn’t matter how the result occurs, just that it results.
example of both:
- [killing of another human being] [by means of a destructive device or explosive]

Attendant Circumstances

Certain facts or conditions that must be present when the actor performs the prohibited conduct/or causes the prohibited result that constitutes the social harm of the offense
- Definitionally speaking, a social harm has NOT occurred unless these are present.
- Example: burglary: breaking and entering of the [DWELLING OF ANOTHER AT NIGHTTIME]/
Example: Assault of a [FEDERAL OFFICER].
Example: Sexual contact with a [MINOR].

Mens Rea

“Evil-meaning mind has gotta accompany the evil-meaning hand”
- Meaning ONE: Broadly speaking it is a “general immorality of motive” an immorally blameworthy state of mind not really linked to any specific states of mind … sufficient that the defendant committed the social harm in a manner that demonstrates their bad character.
- Meaning TWO: The particular state of mind provided for in the definition of an offense
- Rationale: Deterrence , those w different minds are not as equally culpable.
- (US v. X-Citement Video, Inc.) usually modifies everything afterwords … including attendant circumstances; there is a presumption that it modifies everything in the statute if there is a criminalization of a normally accepted thing.

Intentionally (Mens Rea)

CL definition = (1) It is his DESIRE to cause social harm; (2) He acts with knowledge that the social harm is virtually certain to occur as a result of his conduct [i.e. the actor knows that short of divine intervention, the undesired event will occur for sure … think of the airplane incident]

Motive

The “Why” behind the social harm [i.e. I knowingly possessed these drugs … to distribute them]. Irrelevant when it comes to specific mens rea (intentionally, knowingly, recklessly, negligently, etc.) BUT very relevant when it comes to: specific intent; claims of defense (ex. self defense); sentencing

Transferred Intent Doctrine

Liability is attached to the “bad aim” of defendants such that “intent follows the bullet.” For example, A wants to kill B. They shoot and miss B but hit C. Their state of mind is transferred from B to C.
- More scientifically, “One who intends to cause harm to another but unintentionally causes the exact same harm to another makes the person as culpable as if they had accomplished what they intended originally.”
- Be careful of applying to crimes that refer to specific persons (ex. “assault or beat any person w intent to maim, disfigure, or disable such person).

Knowingly

Basically means intentionally.
W respect to material facts (attendant circumstances), this can mean
(1) He is aware of the fact; (2) He correctly believes that the fact exists.
A third version can be invoked: willfull (this)

Willful Blindness

Legal doctrine pertaining to knowledge of attendant circumstances used in some jurisdictions. A third way of reaching the knowledge mens rea that applies if the actor (1) believes that there is a high probability that the fact (attendant circumstance) exists and (2a) takes deliberate action to avoid confirming the fact OR (2b) purposely fails to investigate in order to avoid confirmation of the fact.
- Judge Posner’s ostrich analogy— they are not merely careless… rather, they deliberately avoid acquiring unpleasant knowledge.

Willfully

Word of many meanings … can just be a synonym for intentional OR it can mean "an “act done w bad purpose” or “evil motive.” OR an “intentional violation of known legal duty” OR a “purpose to disobey the law.”
- Different definitions may get confounding if you imagine a case where someone mistakenly asserts a right they do not have and as a result does not answer questions he was legally obligated to answer

Negligence

Constitutes a deviation from the standard of care that a reasonable person* would’ve observed in the actor’s situation.
- Objective fault (blameworthiness for the failure to appreciate that he is taking an unjustifiable risk).

Justifying a risk

1. Gravity of foreseeable harm

2. Probability of the harm occurring

3. Risk of loss (justifiability of the risk

Formula: Gravity x probability < (less than) < Good reason = no liability. There’s a difference between weaving in and out of traffic 20 mph over the speed limit to get to your friend’s birthday versus trying to save the life of your child who needs to get to a hospital.

Recklessness

“A devil may care attitude.”
The “subjective” counterpart of negligence where an actor disregarded a substantial and unjustifiable risk OF WHICH THEY WERE AWARE.

Reasonable Person (Negligence/Recklessness)

Vague concept which has been the subject of much debate … once described as "an ideal … the embodiment of all those qualities which we demand of the good citizen.”
- There are constant pressures to “subjectivize” this by incorporating some of the mental and/or physical attributes of defendants (ex. a reasonable BLIND person; a reasonable person who was just robbed; a reasonable person who is mentally disabled). Usually, the rule is that a defendant’s unusual physical characteristics (ie blindness) if relevant to the case, are incorporated.

Malice (General mens rea term)

In the general mens rea context (that is, non-homicide circumstances), a person acts with this IF he intentionally or recklessly causes the social harm prohibited by the offense.
- Regina v. Cunningham is a weird case because it defines malice in a more “wickedness” based context.

Specific Intent

NOTE: “Notoriously difficult to define and apply”
(1 OLD) The crime requries proof that the actor’s conscious object, or purpose, is to cause the social harm set out in the definition of the offense
(2 NEW) Requires proof of an intention by the actor to perform soe future act or achieve some further consequence beyond the conduct or result that constitutes the social harm of the offense; requires proof of some special motive for the conduct; provides that the actor must be aware of a statutory attendant circumstance.
- (Ex. Possession with intent to distribute; Ex. Breaking and entering of the dwelling of another in the nighttime with intent to commit a felony therein)

General Intent

Blameworthy state of mind. Not really linked to specific states of mind … like “intentionally” or “knowingly” — it’s sufficient that the defendant committed the social harm in a manner that demonstrates their bad character.

malum in se

inherently wrongful

malum prohibitum

wrong because it is prohibited

Strict Liability

Requires conviction of morally innocent person for violation of offense regardless of mens rea … DO NOT REQUIRE MENS REA on 1 or more elements of the actus reus (ex. statutory rape).
- Presumption against (United States v. US Gypsum Co.)
- Constitutionality of this has been subject to much debate: “Mens rea is an important requirement, but it is not a constitutional requirement … except sometimes” (Herbert Packer)

Holdridge v. United States

Court case determining when the presumption against the lack of mens rea (strict liability) is broken in federal law:
(1) No origin in common law; (2) intent of legislature thwarted by mens rea;(3) properly expected behavior; (4) small punishment; (5) no besmirchment of def if convicted.

Mistake of Fact (General)

A mistake regarding an element of the offense that exculpates an actor for the social harm he has caused. NOT A SPECIAL RULE because it closely relates to the mens rea of the offense in of itself (the exculpatory mistake negates the mens rea of the offense … the burden is never shifted to the defendant).
- Example: D1, a hunter, shoots and kills V1, believing he is killing a wild animal.
- Note: can get odd when we start to split hairs on the general versus the specific definition of mens rea (149-152)

Mistake of Fact (Strict Liability Offense)

Under no circumstances does a person’s [THIS] negate their criminal responsibility for violating a strict liability offense.
- Remember that [THIS] only is exculpatory BECAUSE of its relation to mens rea; hence, if an offense does not even take into account mens rea, there is nothing to talk about.

Mistake of Fact (Specific-Intent Offenses)

[THIS] Applies in circumstances where there mistake negates the specific-intent portion of the crime.

Example: if D1 genuinely believes that the property they took and carried away and abandoned, then D1 could not intend to permanently deprive V1 of their property; Example: if D2 truly believed that V2 was consenting to intercourse, then D2 did not intend to rape V2.

Mistake of Fact (General-Intent Offenses)

If mistake is REASONABLE then the person is not guilty of a general intent crime.
- Do note that according to the Moral Wrong Doctrine, “there is no exculpation for a mistake where, if the facts had been what the actor said them to be, his conduct would still be immoral.” Logic is that a person who knowingly performs a morally wrong act assumes the risk that the attendant factual circumstances are not as they reasonable appear to be and that, therefore, his conduct is not merely immoral but illegal.
-- Do note according to the Legal Wrong Doctrine, “a {this} the consequences of which only have to do with the grade of an offense will not shield an offender from the full consequences of the offense committed.”

Mistake of Law

Very typically NOT a valid excusing defense … “ignorantia legis neminem excusat.” Specifically, rarely there is a mens rea element in an offense capable of being negated by this.
- Rationale: (1) There is certainty in law (therefore there is no such thing as a reasonable mistake; (2) Avoiding subjectivity in law; (3) Deterring fraud; (4) Encouraging legal knowledge
- WHEN DOES THIS WORK? (1) Entrapment by estoppel; (2) Lack of fair notice; (3) Failure of proof

Entrapment by estoppel (Mistake of Law)

Situation where mistake of law defense is applicable. Deals with the situation in which the government provides legal misinformation to the defendant upon which is reasonably relied by the defendant in making their decision.
- Note: Reliance upon one’s own interpretation of law or advice of private counsel… NOT A DEFENSE!
- Situations: (1) statute later declared to be invalid; (2) judicial decision of the highest court in the jurisdiction later determined to be erroneous; (3) erroneous interpretation of the law secured from a public officer in charge of its interpretation, administration, or enforcement (ex. Attorney General).
- Example: Erroneous advice w respect to felon in possession DEFENSIBLE if probation officer; NOT defensible if the park ranger.

Lack of fair notice (mistake of law)

Situation where mistake of law defense is applicable. Typically, by common law, citizens are presumed to understand the law and to be aware of the existence of each criminal law. However, under the Lambert principle, a person unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense.
- Typically covers: (1) omissions to act rather than active acts [the FAILURE to act]; (2) status offenses; (3) offense was malum prohibitum

Failure of Proof (Mistake of Law)

Situation where mistake of law defense is applicable. Applicable where the knowledge that the prohibited conduct constitutes an offense is itself an express element of the crime.

Different-Law Mistake

Situation where mistake of law defense is applicable. Applicable where the claimed mistake relates to a law other than the offense for which the defendant has been charged.
- Example: D2 is charged with a rape after he has nonconsensual sexual intercourse with V. At the time of his actions, he believed that V was legally his wife thus taking his conduct outside the proscription of common law rape.
- Defense in specific intent (Cheek v. United States). Example: You, unaware of a mechanic lien law, still believe the car is yours and therefore you think you are recovering your own property (larceny = intent to permanently deprive).
- Defense in general intent. Probably doesn’t exculpate you.
- Strict Liability. Doesn’t matter. Mens rea doesn’t apply.

Causation

An essential part of a crime’s actus reus that links the voluntary act and the social harm (by definition, this is only an issue in the prosecution of “result” [as opposed to conduct] crimes).
- The ultimate question of this concept is “WHY” something occurred … specifically, who or what among the various people and forces existing in the world should be held responsible for resulting harm.
- Rationale = retributive concept of just deserts. This kinda helps to determine how much a wrongdoer owes society.
- NOT the same as in tort law v crim law. In crim law, you have higher standards and stricter tests.

Actual Cause (Factual Cause)

The direct reason an injury or harm occurs. Does not on its own determine whether or not criminal responsibility exists. Mens rea and proximate cause must also be considered.
- Determined by the “But-for” test.

“But-For” (“Sine Qua Non”) Test

Test that serves a limited purpose. It functions to exclude certain forces from potential causal responsibility for the harm (in other words, eliminate candidates of responsibility). To hold someone criminally liable, the prosecution must prove beyond a reasonable doubt that they were a/the but-for cause of the harm (in other words, the matter of ultimate causal responsibility is still up for grabs).
- But for D’s voluntary act(s), would the social harm have occurred WHEN it did? Yes = thing not actual cause. No = actual cause

Condition (Causation)

Normal events or circumstances that, although necessary for the result to occur, do not positively contribute to it. These are not the focus in causation although they technically meet the “but for test” conditions.
- Ex. V is shot in the heart. The basic laws of physics or the physiological structure of V’s body are not interesting or out of the ordinary. What is of interest is the voluntary act of pulling the trigger of the gun.

Oxendine v. State

Illustrates an important point about the “but for” test … the “WHEN it did” portion specifically.
- Two separate beatings of a child. One reduces lifespan to an hour. The other reduces it to five minutes. Who is prosecutable? Both! Both accelerate the timetable and cause the consequence to occur when it did.

Obstructed Cause

Efforts obstructed by a separate force which in fact cause the result.
- Ex. D1 stabs V in the stomach (Doctor later testifies he would have survived regardless). Simultaneously and independently, D2 shoots V three times in the head, killing him instantly.

Proximate Cause

An event that is sufficiently related to an injury, such that the courts deem it to be the cause.
- The question is how far back to we go “Mankind might still be in Eden, but for Adam’s biting an apple.” Should we therefore consider Adam’s mistake the proximate cause for a murder that occurs today?
- Typically, the question is answered in a commonsense matter … this is not found but rather selected.

Direct Cause (Proximate Cause)

Force determined to be an actual cause of the undesired result and after which no additional causal event occurred.
- Example: D shoots V. V goes to hospital and receives proper medical care. V dies shortly thereafter.

Intervening Cause

Independent “but for” force that operates in producing a result but only comes into play AFTER the defendant’s voluntary act has occurred.
- Pattern: (1) D harms V; (2) a second causal force occurs (3) aggravating, accelerating the inevitable.
- When are these so out of the ordinary that “it no longer seems fair to say that the [result] was caused by the defendant’s conduct?”

Superseding Cause

When an intervening cause does relieve the defendant, who possesses the adequate mens rea and whose conduct or omission is a cause-in-fact of the result, of criminal responsibility.
- Factor 1 (De Minimis Contribution to the Social Harm). Defendant’s causal responsibility for the ensuing harm is trivial in comparison to that of an intervening cause.
- Factor 2 (Foreseeability). Were the intervening party’s acts reasonably foreseeable?

Responsive intervening Act (Superseding Cause)

Occurs in reaction or response to the defendant’s prior wrongful conduct. Example: D1 overturns a boat. Someone tries to swim to shore and drowns.
- Does not relieve Defendant UNLESS abnormal and unforeseeable.

Coincidental Intervening Cause (Superseding Cause)

Places the victim in a situation where the intervening cause could independently act upon him.
Example: You beat up V1. He goes to the hospital. There just so happens to be a knife-wielding maniac who kills him.
- Relieves UNLESS foreseeable.

Intended Consequences Doctrine (Superseding Cause)

“The legal eye reaches further in the examination of intentional crimes than in those in which this element is wanting.”
-- We often trace the cause of a result backward through other causes until we reach an intentional wrongdoer (ex. The poison child case where the poison exchanges hands a bunch of times where ultimately the intended target drinks it and dies).
- Example: You shoot to kill someone. They survive and go to the hospital. They receive bad treatment and ultimately perish. You got what you wanted, right?

Apparent Safety Doctrine (Superseding Cause)

When a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.”
- Example: V reaches the vicinity of her father’s house where she knew that she could enter and be free from the immediate harm. Her decision to sleep outside constitutes a superseding intervening cause.”
- Example: V reaches the shore after swimming vigorously and decides to jump back in and swim back out for no reason. They drown trying to get back.

Omissions Doctrine (Superseding Cause)

“Doing nothing… is just that — nothing— so far as the law is concerned.” An omission will rarely supersede an earlier, operative wrongful act even if the omitter has a duty to act.
- Example: D beats V1 to death while a police officer stands by and watches quietly.

De minimis Doctrine (Superseding Cause)

When the defendant’s causal responsibility for ensuing harm is trivial in comparison to that of an intervening cause.
- You knock someone out and on the way to the hospital (in the ambulance) a meteor strikes and blows up the vehicle.

Foreseeability Doctrine (Superseding Cause)

A defendant should not escape liability unless the intervening force was bizarre and unforeseeable.
- Example: You knock someone out and on the way to the hospital (in the ambulance) a meteor strikes and blows up the vehicle.

Temporal Concurrence

The requirement that the defendant possess the requisite mens rea at the same time that her voluntary conduct (or omission) causes the social harm (the actus reus).
-(YES) = Setting a plan into motion and regretting it later.
- (NO) = Making a plan to kill V. Abandoning it. Later killing V by pure accident.
- (NO) = You trespassorily take a car just to joyride it and later decide to keep it permanently. The moment you took the car and your decision to keep it don’t align; you break into a house to stay there while its cold. You later decide to take property.

Motivational Concurrence

The requirement that the defendant’s conduct that caused the social harm must have been set into motion or impelled by the thought process that constituted the mens rea offense.
- (NO) = Accidentally pulling the trigger to test a gun and killing your husband who you actually intended to kill later.

Criminal Law Defenses

Although prosecution must prove beyond a reasonable doubt that (1) voluntary act [or omission]; (2) social harm; (3) mens rea; (4) actual and proximate causation between 1&2, the burden of persuasion regarding these (BESIDES failure of proof) may be allocated to the defendant.

Failure of proof Defense

Defense in which the defendant introduces evidence at trial to demonstrate that the prosecution has failed to prove an essential element of the offense charged.
- Example: You introduce evidence an intentional homicide trial to dispute that he had malice aforethought … like you want to prove that he thought he was shooting at a tree stump vs a human being.

Justification Defense

Defines conduct “otherwise criminal, which under the circumstances is socially acceptable and which deserves criminal liability nor even censure.”
- Justified context, in fact, is a “good thing, the right thing, or the sensible thing” to do.
- Focuses upon the act in the sense that it seeks to show that the result of the act was not wrongful.
- Example: Self-defense

Excuse Defense

Tries to show that the actor is not morally culpable for wrongful conduct.
- “although the actor has harmed society, he/she should not be blamed or punished for causing that harm.”
- Example: An insane actor.

Specialized Defenses

Abandonment; legal impossibility

Justification

Conduct under ordinary circumstances that is criminal, but which under the special circumstances encompassed by a special defense, is not wrongful and even affirmatively desirable. These may apply to accomplices and would-be helpers (remember this is ACT-focused).
— Rationale
- “Public Benefit” Theory = society benefits and it is the underlying motivation fo the actor’s conduct.
- “Moral Forfeiture” Theory = People may forfeit (nonconsensually lose) certain moral rights or interests represented in criminal laws.
- '“Moral Rights” Theory = Right to protect a particular moral interest
- “Superior Interest” Theory Interests of the defendant outweigh those of the person they harm (example: trespassing to enter a house to avoid a tornado).

Excuse

Although the actor has harmed society, she should not be blamed or punished for causing the harm. These do NOT apply to accomplices and would-be helpers (remember this is ACTOR-focused).
- Deterrence Theory; Causation Theory; Character Theory; Free Choice Theory

Self-Defense

Elements: (1) Reasonably (2) believes such force is (3) necessary to (4) protect himself against an (5) imminent use of (6) unlawful) force by another person and said force is (7) proportional to the threat.
- In cases of deadly force, it is only justified IF they reasonably believe that it is necessary to prevent imminent and unlawful use of deadly force.
-note: usually transferred intend applies here but kinda limited … you can’t be negligent or reckless
- note: reasonable person will usually include physical characteristics, relevant knowledge, and prior experiences that could form the reasonable basis

Necessity Component (Self-Defense)

Provides that force should not be used against another person unless, and only to the extent that, it is required.
- By definition, therefore, a person may not use deadly force to combat an imminent deadly assault if some nondeadly response will apparently suffice.

Proportionality Component (Self-Defense)

Provides that a person is not justified in using force that is excessive in relation to the harm threatened.

Reasonable Belief Component

Provides that a belief must be both subjectively and objectively valid. First, you need to subjectively believe that you need force to repel an imminent unlawful attack. Second, this belief must be one that a reasonable person in the defendant’s circumstances would hold.

Deadly force

(V1) Force likely or reasonably expected to cause death or serious bodily injury.
(V2) Force “intended” (mens rea sneak-in) to cause death or serious bodily injury regardless of the likelihood fo the result occurring
(V3) Actor “reasonably should have known” that the force used was likely to cause death or serious injury

Non-Aggressor Limitation

(Self Defense Principle) where an aggressor has no right to claim self-defense.
- The question at issue always is: Who was the aggressor at the time the defensive— in this context, deadly— force was used.

Aggressor

(self Defense Principle) One whose “affirmative unlawful act” is reasonably calculated to produce an affray foreboding injurious or fatal consequences.
- Ex. Brandishing a firearm —> B attacks —> you aren’t justified in defending yourself.
- Deadly version = produce fatal consequences. Can be removed IF you retreat in good faith and fairly communicate this fact.
- Nondeadly version = foreboding injury. Can be removed IF you retreat in good faith and fairly communicate this fact. Can be removed IF a victim of nondeadly force responds with deadly force.

Retreat Limitation

(Self Defense Principle) Limitation wherein a victim of a deadly attack may only use deadly force in self-protection if you first retreat (like you need to try and fail to retreat or have the inability to do so directly for necessity to be satisfied).
- Given the Stand Your Ground laws + Castle Doctrine + other random requirements (like being aware of your duty to retreat), this requirement is actually quite … rarely applied.

Defense of Others Defense

“An actor is justified in using force against another to protect a third person when (A) a reasonable person in the actor’s position would believe his intervention to be necessary for the protection of a third person, and (B) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using force to protect himself.”
- Usurps an outdated alter-ego rule which provides that a third party’s right to defend runs parallel to that of the first party.

Defense of Property

A person is justified in using nondeadly force against a would-be dispossessor IF (A) the actor reasonably believes that such force is necessary to prevent (B) imminent (C) unlawful dispossession of the property.
- Note 1: Possession is not title (remember larceny v. embezzlement v. fraud)
- Note 2: “a person may use no more force than reasonably appears necessary.” (taking into account a person’s own safety)
- Note 3: Deadly force is not permitted.
- Note 4: Force in recapture of property is usually not permitted except if the recapture is promptly.

Defense of Habitation

• Rationale for treating this more seriously than mere property is that a house is a man’s defense against injury and violence … it is his repose. Furthermore, it is a source of privacy where the most intimate activities are conducted.

• Deadly force is permitted.

• Can overlap with other defenses like crime prevention and self-defense. As such, this has been referred to as “accelerated” self-defense occasionally.

Has changed over time and there are various versions (the differences may not matter that much because all of this is based off of reasonable appearances and the trigger is before entry thereby reducing opportunity for discovery).
- Early Common Law = “If he reasonably believed that such force was necessary to protect an imminent and unlawful entry of his dwelling.”
- Middle Approach = “If he reasonably believes that (1) the other person intends an unlawful and imminent entry of the dwelling; (2) the intruder intends to injure him or another occupant or to commit a felony therein; (3) deadly force is necessary to repel the intrusion.
- Narrow Approach = if he reasonably believes that (1) the other person intends an unlawful and imminent entry of the dwelling; (2) the intruder intends to commit a forcible felony therein; (3) deadly force is necessary to prevent the intrusion.

Spring Gun

Mechanical device that can be set off when a person opens a door or other entryway into or within a building equipped with such a device.
- Common law provides that this kind of device can be used “where the intrusion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm w his own hands.”
- You basically place it at your own peril. There’s no “reasonable appearances” here.

Law Enforcement Defense

Acts undertaken in the reasonable enforcement of criminal laws.
- (1) Public Authority; (2) Crime Prevention; (3) effectuation of an arrest … 3a the arrest … 3b prevention of the escape of the arrestee

Public Authority Defense (Police)

Normally, arrests are restraints on liberty that would constitute false imprisonment (arrests are seizures of a person covered by the Fourth Amendment). However,
Police officer: with probable cause, you can make an arrest for felony or misdemeanor
- (CL note = felonies don’t need arrest warrant; misdemeanors yeah unless it occurred in presence of officer).
- (Constitutional Note: Absent consent to enter or an emergency, warrants must be obtained for felony arrest in their home; warrantless misdemeanor arrests in the home are frowned upon as well except in hot pursuit).

Public Authority Defense (Private Persons)

Normally, arrests are restraints on liberty that would constitute false imprisonment. However,
Private persons may make citizens arrests for felonies or misdemeanors [must occur in presence of person] involving a breach of the peace IF: (1) the crime actually occurred and (2) they reasonably believe that the suspect committed the offense.
- Note that reasonable Mistake only applies to section 2.

Crime Prevention Defense

• Nondeadly force: A police officer OR private person is justified in using nondeadly force upon another if they reasonable believe that (1) such other person is committing or has committed a felony/misdemeanor amounting to a breach of the peace and (2) the force used is necessary to prevent commission of the offense or to effectuate an arrest (make arrest or prevent escape).

• Deadly force: May NEVER be used to prevent commission of a misdemeanor offense or effectuate an arrest of a misdemeanant. Typically limited to prevention or “forcible” or “atrocious” felonies.

Effectuation of an Arrest Defense

A person may use deadly force upon another if they reasonably believe (1) the suspect committed a forcible or nonforcible felony; (2) such force is necessary to make the arrest or prevent the suspect from escaping.
- For private citizens, this defense is a lot narrower… deadly force is OKAY only if (1) offense MUST be a forcible felony; (2) the arresting party MUST give the suspect notice of her intention to make the arrest; (3) the arresting party MUST BE CORRECT IN HER BELIEF THAT THE PERSON AGAINST WHOM FORCE IS USED ACTUALLY COMMITTED THE OFFENSE IN QUESTION. Reasonable mistake of fact is not a defense here.
- Per civil cases, the mire of reasonableness in light of particular circumstances is the name of the game… (1) probably cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” and (2) the officer must reasonably believe that deadly force is necessary to make the arrest or prevent escape.

Necessity (aka the “lesser evil” defense)

(1) The actor must reasonably believe they are faced with “clear and imminent” danger; (2) The action must be reasonably expected to abate the danger sought to be avoided; (3) There must be no effective legal way to avoid/avert the harm; (4) Proposed harm of the illegal action must be LESS than the to-be-averted harm (reasonably foreseeable at the time; given the fats as they reasonably appeared, was the decision correct?); (5) Decision not in conflict w previous weights; (6) Clean hands that haven’t significantly contributed to the substantial risk.
- A defense of last resort that comes into play in relatively “unique instances in which it may fairly be assumed that lawmakers would have authorized the conduct if they could have considered the matter in advance.
- LIMITATIONS = (1) Emergency gotta be created by a natural event; (2) Not applicable in Homicide cases; (3) Sometimes limited to protection of persons and property.

Civil Disobedience

Nonviolent act publicly performed and deliberately unlawful that has as its purpose to protest a law, government policy, or action of a private body.
- Direct = protest against a particular law by breaking it
- Indirect = violation of law not involved in the protest (very hard to get a necessity claim here)

Duress (Coercion)

(1) Another person threatened to kill or grievously injure (deadly force) the actor or a third party unless she committed the offense; (2) the actor reasonably believed that the threat was legit; (3) the threat was “present, imminent, and impending” (it would be so quick that … see element 4) at the time of the criminal act; (4) there was no reasonable escape from the threat except through compliance with demands of the coercer; (5) the actor was not at fault in exposing herself to the threat.
- Only applicable in cases of HUMAN threats … NOT always the lesser evil …
- Covers situations where an individual does not have a fair opportunity to express their free will … a situation where we could not honestly say what we would or would not have done.
- Not applicable in Murder cases though (“When confronted with an apparent kill-an-innocent person-or-be-killed situation, a person can always choose to resist.”)

Intolerable Prison Conditions Defense

Necessity = Right (or at least TOLERABLE) for them to escape
Duress = Shouldn’t be blamed for fleeing

Intoxication

Disturbance of mental or physical capacities resulting from the introduction of any substance into the body. Anglo-American law is quite unsympathetic to those who would bring this up to avoid criminal responsibility.
- #1. How did the defendant become intoxicated (“voluntary” or “involuntary”)?
- #2. In what way does the defendant claim that his intoxication affected his culpability (state of mind … unconscious … insanity etc.)?
- #3. What type of offense is the defendant charged — general, specific intent, or strict liability?
NOTE: Can confusingly parallel the following defenses: traditional insanity defense claims, diminished capacity (mental illness), mistake-of-fact (see Regina v. Cogan & Leak).

Voluntary Intoxication

If the actor is culpable for their intoxication (knowingly ingests a substance that they should know can cause them to become intoxicated … not out of coercion or prescribed medication). Unexpected effects (i.e. from being laced) aren’t taken seriously (see: People v. Velez).
- As for addiction, consumption associated with it is considered voluntary (this doesn’t overlap with status … we’re talking about results of being intoxicated bro).
- VERY VERY FEW circumstances where you can void criminal conviction (“A man who by his own voluntary act debauches and destroys his will power [should] be no better situated in regard to criminal acts than a sober man.”).
- LIMITS = no state of mind (FAILURE OF PROOF— NOT EXCUSE; applicable not in general intent only in specific-intent); long-term intoxication-induced insanity (temporal not available, I mean you contracted it voluntarily BUT long term… chaining back the causation to stuff so remote is odd); unconsciousness (did not do the criminal act … not a mens rea defense since the unconsciousness was brought on by a voluntary act).

Involuntary Intoxication

Intoxication for which the actor is NOT to blame … cases involving successful assertion of this are exceedingly uncommon. May arise in four circumstances: (1) coercion [left in the desert or drink boy]; (2) innocent mistake [breath freshener v. cocaine]; (3) unexpected intoxication from prescribed medication used normally; (4) pathological intoxication (“intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible”).
- This excuse generally covers the same ground as voluntary intoxication with the added area of temporary insanity.

Insanity

“Any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.”
- Tests include (1) M’Naghten Test; (2) Irrestistible Impulse Test; (3) American Law Institute (MPC) Test; (4) Product Test; (5) Federal Test

Competency to stand trial

A person is found to be this if during criminal proceedings: (1) they lack the capacity to consult with her attorney “with a reasonable degree of rational understanding” or (2) lacks “a rational as well as factual understanding of the proceedings” against her.
- May be the product of a physical handicap (e.g. inability to speak) or mental (amnesia, severe depression, etc.)
- Issue may be raised by Def, Pros, or Judge. Upon being raised, a mental evaluation is ordered. If the findings are disputed, then an evidentiary hearing is called on the matter.
- Result is temporary commitment to mental health facility … for a “reasonable period of time not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future [they] will obtain the capacity to permit the proceedings to go forward.”

Insanity plea

Typically necessary to raise notice prior to trial to give prosecution adequate time to prepare a rebuttal to the defense at trial (affirmative which must be proven by other a preponderance of the evidence or clear and convincing evidence).
- If this is raised, the court typically has statutory authority to order a defendant to submit to a pretrial psychiatric examination … in addition, it is likely that the defendant is committed to a mental facility for a specific period of time.
- If the mental eval supports insanity, the prosecutor will dismiss charges on the condition of commitment.
- Acquittal after this can either result in automatic commitment or discretionary commitment
- The success and frequency of this plea are grossly and dramatically overestimated.

M’Naghten Test

Federally official insanity test. Provides that a person is insane IF at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind that (1) she did not know the nature and quality of the act that she was doing; (2) if she did know it, she did not know that what she was doing was wrong i.e. the accused at the time did not know the difference between right and wrong.
- Know: (1) Literally be aware; (2) evaluate conduct and appreciate its impact on others and the total setting in which she acts [internalize the enormity and emotionally appreciate its wrongness]
- Nature and quality: Limited. Frequently excluded since “know” kinda covers this lowkey.
- Right from Wrong: (1) legal wrongdoing OR (2) Moral [ you know society will condemn you regardless or not if you are personally convinced your conduct is morally proper] wrongdoing? Depends.
- Criticism: Grossly narrow and absolutist.

Irresistible Impulse (“Control”) Test

Volition-based insanity test. Language varies by jurisdiction but generally speaking follows some pattern like this: A person is insane IF at the time of the offense (1) a “delusional compulsion overmastered her will to resist committing the crime; (2) she was incapable of preventing herself from committing the crime” or (3) “she was totally deprived of the mental power to control or restrain her act.”
- Bit click bait given that many courts dont require proof of total volitional incapacity.

American Law Institute (Model Penal Code) Test

A person is not responsible for her criminal conduct if, at the time of the conduct, as a result of mental disease or defect, she lacked substantial capacity to: (1) appreciate the “criminality” of her conduct; or (2) to conform her conduct to the requirements of the law.”
- Revised M’Naghten and Irresistible Impulse that incorporates elements of both … particularly, a more expansive version of know via the word appreciate; furthermore, it hedges when it says “lacks substantial capacity” and not total incapacity.