criminal law final

Defense

evidence and arguments offered by a defendant and his or her attorney to show why that person should not be held liable for a crime

Factual defense

the defendant simply asserts that he or she didn’t do it

Legal justification defense

generally speaking, conduct that a person believes it necessary to avoid a harm or evil to himself or herself, or to avoid harm to another, if the harm or evil to be avoided is greater than that which the law defining the offense seeks to avoid 

legal excuse defense

in which the defendant claims that some person condition or circumstances at the time of the act was such that he or she should not be held accountable under criminal law

Affirmative defense

are different from other defense because they impose burdens on the defendant

• Unlike other defenses these place the burden of production and persuasion on the defendant

• A successfully raised defense may have the effect of completely exonerating the defendant of any criminal liability

Justification as a defense

Necessity, self defense, defense of others, defense of home and property, resisting unlawful arrest, and consent

Necessity

a defense to a criminal charge that claims that it was necessary to commit some unlawful act in order to prevent or avoid a greater harm.

Self defense

based on the recognition that a person has an inherent right to self-protection and that to reasonably defend oneself from unlawful attack is a natural response to threatening situations. Unavailable to those who precipitate or incite an attack

Apparent danger

exists when the conduct or activity of an attacker makes the threat of danger obvious and imminent. Preemptive strikes are not valid defenses

Force

 as used within the content of self defense, means physical force; it does not extend to emotional, psychological, economic, or other forms of coercion

• The amount of force used by the defender must used by those who seek to defend themselves from

  unlawful attack must be proportionate

Reasonable force

the degree of force that is appropriate

• The minimum degree of force necessary to protect oneself. One's property, a third party, or property of another in the face of substantial threat

Deadly force

is the highest degree of force and is considered reasonable only when used to counter an immediate threat of death or great bodily harm

Retreat rule

requires that a person being attacked retreat in order to avoid the necessity of using force

Defense of others

when another person is being victimized, you can stand in the shoes of the victim and can use whatever force the victim could use in that persons defense

Alter ego rule

 holds that a person can only defend their part under circumstances and only to the degree that the third party could act on his or her behalf

Defense of home and property

The owner of property can justifiably use reasonable, non-deadly force to prevent others from unlawfully taking or damaging that property.

• The use of deadly force to protect property is not justified unless the perpetrator may intend to commit a violent act against another human

Castle exception

exception to the retreat rule that recognizes a person's fundamental right to be in his or her home and also recognizes the home as a final place of retreat

Resisting unlawful arrest

all jurisdictions have laws making it illegal for a person to resist an unlawful arrest, and to use force, if necessary, to use force to effect an arrest or to prevent individuals from escaping.

Execution of public duty:

defense precludes the possibility of arresting officers being prosecuted on charges of assault or battery as long as the officers acted in a lawful manner. Deadly force may be applied to prevent death or serious injury of an officer

Consent

• a justification offered as a defense to a criminal charge, claiming that the person suffering an injury either agreed to sustain the injury or accepted the possibility of injury before the activity happened

  • Consent cannot be claimed in cases of intimidation or fraud

Excuse

admits that the action commited by the defendant was wrong and that it violated the criminal law but claims that the defendant should be excused from criminal liability by virtue of special conditions

Duress

 sometimes called compulsion, excuses a personal from criminal liability because as a community we conclude that is reasonable for the person who committed the criminal to have succumbed to the threat or coercion that was the cause of the criminal act

Intoxication

a claim of intoxication is generally not regarded as an effective defense when the intoxication results from alcoholism

• Those who voluntarily put themselves in a condition in which they have 

• Involuntary intoxication: generally resulted from the unknowing ingestion of an intoxicating substance

Mistake

person usually won’t be considered guilty of a crime if they acted based on what they reasonably believed was happening—even if they were wrong—as long as what they thought was happening would have made their actions legal.

 reasonable mistake

is one that might be made by a typically competent person acting under the same set of circumstances

Mistake of fact

should be distinguished from ignorance of fact

Ignorance of fact

refers to a lack of knowledge of some fact relating to the matter at hand, whereas mistake of fact may negate the mens rea required for a specific offence

Mistake of law

 a misunderstanding or misinterpretation of the law relevant to the situation

Ignorance of law

lack of knowledge of the law or the existence of a law relevant to the citation at hand

• May be an excuse when the law is not adequately published or is incable of being known

Age

 defense of age, make the claim that certain individuals should not be held criminally responsible for their activities by virtue of youth

• Children under the age of criminally responsibility are subject to juvenile court, but almost all states allow children to be transferred to criminal court if their crime are serious or are habitually in trouble with the law

Entrapment

an improper or illegal inducement to crime by enforcement agents. If it had not been for government instigation no crime would have occurred

Two most common entrapment activities are

false representation by enforcement agents that are calculated to induce the illegal behavior is not prohibited. The use of inducements to crime that are so strong that a person of average will and good intent could not resist

Subjective test

attempts to distinguish between those who are blameworthy and those who are not by asking whether a person caught by the government was predisposed to commit the crime in question

Objective test

 sometimes referred to as the defense of outrageous government conduct

Competency to stand trial

 a finding by a court that the defendeatn has the sufficent ability to consult with his lawyer with understanding and that the defendant has an understanding of the proceeding against them

Insanity

can influence criminal liability in two ways

• May result in a finding that the mens rea required for the crime was lacking

• It may lead to a showing that although mens rea was present the defendant should be excused from legal responsibility because of mental disease or defect

Insanity defense misunderstanding:

 those who are suffering from mental illness may act purposefully even though they may not be able to fully appreciate the moral implications of their behavior

The m'naughten rule

knowing right from wrong

• A rule for determining insanity that asks whether the defendant knew what he or she was doing was wrong

Irresistible impulse test

control rules

• A test for insanity that evaluates defense claims that at the timeof the crime, a mental disease or disorder prevented the defendant from controling is or her behavior

The Durham rule

also known as product rule. Belief that an inability to distinguish from right from wrong is a symptom of mental disease and that behavior from the disease is a more suitable determinant of legal insanity

The insanity defense reform act

 made insanity an affirmative defense to be proven by the defendant by clear and convincing evidence and created a special verdict of not guilty by reason of insanity

Guilty but mentally ill

establishes that the defendant, although mentally ill, was sufficently in possession his faculties to be morally blameworthy for his acts

• If found guilty the defendant would be evaluated and sent to hospital if treatment was needed.

Diminished capacity

 a defense based on claims of a mental condition that may be insufficent to exonerate a defendant of guilt but that may be relevant to specifc mental elements of cetain crimes or degress of crime

Victim at Law

 the party who has legal standing to prosecute the person who commits a criminal offense

Victim in fact

 the person who is the subject of a criminal act

Strict liability theory

 claims that compensation is due victims because the social contract between victim and society has been broken by victimization

Government negligence theory

 holds that the government was negligent for allowing harm and should make appropriate forms of compensation

Equal protection theory

compensation should be used to reduce unfair differences in society, especially because some people face much higher risks of crime depending on where they live or their life situation.

Humanitarian theory

 advocates compensation because of the suffering victims undergo

Social welfare theory

says that victims should be compensated if they are in need.

Crime prevention theory

holds that compensation programs encourage more citizens to report crime, thereby resulting in more effective law enforcement programs.

Post crime victimization

 problems of the victim that follow from an initial victimization such as loss of employment, inability to pay medica bills, and insensitivity

Victim and Witness protection act

enacted to enhance and protect the necessary role of crime victims and witnessed in the criminal justice process.

Son of Sam laws

 a statue that provides support for the rights of victims by denying convicted offenders the opportunity to further capitalize on their crimes. If an convicted felon receives profits from the story of the crime all profits can go to the victims of the offenders

Victim impact statements

When a court uses information from a victim or survivor to help decide what punishment the offender should receive.

Orality

 the principle that oral testimony and cross examination, particularly at trial, is more valuable than written testimony

Confrontation clause

Under the Sixth Amendment, criminal defendants have the right to confront and cross-examine the witnesses and accusers against them during a trial

Exceptions

Out-of-court statements may be allowed as evidence if they are used to prove something important and the defendant previously had an opportunity to cross-examine the person who made the statement.

Restitution

a court requirement  that a convicted offender pay money or provide services to the victim of the crime or provide services to the community.

Restorative justice

builds on  restitution and other sentencing strategies to benefit all parties affected by the criminal event

Punishment and sentencing

 it is the last stage of a criminal trial.  Process which a sentencing authority imposes a lawful punishment or other sanction on a person convicted of violating the criminal law

Rationale for sentencing

 it holds that criminal offenders deserve the punishment they receive should be appropriate to the type of sentencing  and severity of crime committed

Retribution

the most punishment oriented of all sentencing goals and underlies the just deserts philosophy. The act of taking revenge on a criminal perpetrator. Holds offenders responsible for their behavior.

Deterrence

seeks to prevent others from committing crime similar to the one for which an offender is being sentence

Specific deterrence

intended to deter the individual sentenced to punishment from committing future offense

General deterrence

uses punishment as an example to others who may be contemplating breaking the law

Rehabilitation

a goal of criminal sentencing  to reform criminal offenders restoring them to productive lives within the community

Restoration

seeks to make victims and the community whole again, uses fines, restitution and community service

Incapacitation

 makes use of imprisonment or some other sentencing option to reduce the likelihood that an offender will be capable of committing future offense

Limitations

the 8th amendment prohibits cruel and unusual punishment, excessive fines and bail.

Proportionality

to the belief that the severity of sanctions should bear a direct relationship to the seriousness of the crime committed

Equity

 Is based on a concern with social equity and means that similar crimes should be punished with the same degree of severity regardless of characteristics of the offender

Social debt

the principle that objectively counts an offenders criminal history in sentencing decisions.

Plea bargaining

the process of negotiating an agreement among the defendant, the prosecutor and the court as to what an appropriate plea and associated sentence should be in a given case

Sentencing options

imprisonment, probation( suspended imprisonment with the goal of rehabilitation), fines, death

Concurrent

sentences run at the same time

Consecutive

1 sentence followed by another 

Aggravating circumstances

circumstances surrounding commission of crime that cause its gravity to be greater than average

Mitigating factor

 a circumstance surrounding the commission of a crime that does not justify the act but may be considered as reducing blameworthiness

Intermediate sanctions

criminal penalties that fall between standard probation and incarceration, offering courts a flexible, community based alternative to traditional prison sentences

Examples of intermediate sanctions

split sanctions, shock probation, shock parole, shock incarceration, mixed sentencing, community service, intensive supervision, home confinement.

Split sentencing

requires a convicted offender to serve a brief period of confinement followed by probation 

Home confinement

requires offender be confined in their homes