CCJS 230 Exam 3

who can offer a defense?

\-a defense attorney
\-attorneys don't have to offer a defense

\-offer affirmative defenses

what burdens do sates carry?

-burden of proof
-burden of persuasion
-has burden because the government has almost unlimited resources

proof

beyond a reasonable doubt

persuasion

defendants have to
prove their justification
or excuse defenses by
a preponderance of the
evidence

affirmative defense

has to have some reasonable evidence to have a reasonable defense
\-admit that you committed the crime but for certain reason

\-mere assertion for defense is not enough, must offer some credible evidence

alibi defense

impossibility defense
-impossible to commit the crime you're accusing me of because I wasn't even there

veracity

truthfulness

what are the 2 types of affirmative defenses?

justification and excuse

justification defense

i did it, but under circumstances at the time, i was justified in what i did; not blameworthy
-ex. self-defense, defense of others, defense of property

self defense

-main issue: the government has the monopoly use of force under our system of government
-government enforces a monopoly on self-defense like it's their big business
-police cannot be everywhere all the time
-has to be done out of necessity (necessity must be great and exist right now at the moment)
-has to be for prevention only

defense of others

\-if self-defense is legally available to them, it can transfer to you-when defending others, you are stepping into their shoes
\-if they step into the shoes on the other side, murder will transfer to them

\-in common law only could do for family member, now can for stranger

defense of property

-if you break into a house when it is occupied, it is assumed that you also meant to do harm to those in the house
-are you sure you want tohave a gun in your hosue? taking another life if life-altering

excuse defense

admit that you did it, but under circumstances not responsible for actions; don't have the mental capacity to do what they did
-ex. insanity, infancy, duress
-also entrapment but rarely successful

entrapment

\-focuses on defendant's predisposition to the crime
\-can't look at past acts using entrapment
\-did defendant demonstrate willingness or expertise?
\-have they committed similar offenses
\-readiness to commit the crime

defenses

-defendant offers defense
-prosecutors are supposed to prosecute (step in the shoes of the person you are defending)
-cannot resist a lawful arrest
-citizens can only use force that is reasonable
-perfect vs imperfect defense

perfect defense

completely free, no liabilities

imperfect defense

not guilty of a more serious offense but guilty of an underlying offense, some criminal liability

insanity excuse defense

-must suffer from a mental defect or disease, and must be suffering from it at the time of the act
- a legal term not a medical term
-transferred intent
-not an embraced defense, not used as much as people think they are
-still accountable for your actions if you are a psychopath or sociopath
-right and wrong test (most states follow it)

temporary insanity

had a mental defect at the time of the crime, but is now okay at that moment in time
-even more difficult than actual insanity

irresistible impulse defense

-damaged willpower test
-the defendant can know the act is wrong but due to a mental defect or disease and cannot control their impulses, the insanity defense applies and can be named not guilty

substantial capacity test

-not responsible if at the time of conduct as a result of mental disease or defect they lack the substantial capacity to appreciate their criminality or to conform conduct to requirements of the law
-model penal code test

is willingly being intoxicated a legitimate defense?

no
-and reasonableness has to be applied

infancy

-ages 123456 have the irrebuttable assumption that they lack the mental capacity to commit a crime
-a presumption in law that I cannot argue or refutedu

duress

-can be forced to commit a crime through blackmail or coercion, but reasonableness still applies
-4 main elements

4 main element of duress

1. nature of the threat (some states say needs to be the threat of death, some say bodily injury)
2. immediacy of threat (imminent harm)
3. reasonableness applies
4. kill or be killed (never applies when it's death)

choice of evils defense

requires you to select the lesser evil

terrorism

use or threat of use of force designed to bring cultural, political, social, or religious change

\-based on special interest, political (not just religion)

JTTF (Joint Terrorism Task Forces)

\-federal state and local law enforcement working in partnership together to combat terrorism

\-what you don’t hear about is probably most important

ways terrorists execute terrorism

\-poison water systems

\-kidnapping

\-assassinations

\-most common: weapon of mass destruction

law of posse comitatus

\-can’t send soldiers into cities for civil law enforcement

\-national guard units cannot be used unless brought in by the governors of the state

\-once nationalized by the president they cannot

state-sponsored terrorism

terrorist groups can be used as a form of diplomacy

formalized terrorist organization

\-not tied to any government

\-have their own reason for doing what they’re doing

loosely affiliated international radical extremists

\-own agenda

\-freelance

what are the most common reasons for terrorism attacks?

\-religious

\-social

\-political

no duty for police to stop a crime

had to have some knowledge and willingness to do a crime

withdrawl exception

original aggressor does not have self-defense available unless they completely withdraw from attack

2 primary areas of consent

sexual offenses or sporting offense (UFC fighter)

rebuttal defense

evidence/argument introduced to counter, disprove, or contradict the opposing party’s evidence or argument, either in trial or in a reply brief

irrebuttable defense

a defense that the law does not allow to be contradicted by evidence

\-ex. presumption that a child below age of 10 is incapable of committing a crime

competency hearing

special hearings to determine if defendants who have used the insanity excuse defense are still insane

mitigating circumstances

convince fact finders (judges or juries) that defendants don’t deserve the maximum penalty for the crime they’re convicted of

initial aggressor

someone who provokes an attack can’t then use force to defend herself against the attack she provoked

necessity

a defense that argues an imminent danger of attack was prevented

imminence requirement

an element of self-defense requiring the danger to be “right now!”

stand-your-ground rule

if you didn’t start a fight, you can stand your ground and kill to defend yourself without retreating from any place you have a right to be

retreat rule

you have to retreat from an attack if you reasonably believe (1) that you’re in danger of death or serious bodily harm; and (2) that backing off won’t unreasonably put you in danger of death or serious bodily harm

castle exception

when attacked in your home, you have no duty to retreat and can use deadly force to fend off an unprovoked attack, but only if you reasonably believe the attack threatens death or serious bodily injury

cohabitant exception

in the jurisdiction that follow the retreat rule, people who live in the same home don’t have to retreat

battered woman syndrome (BWS)

a mental disorder that develops in victims of domestic violence as a result of serious, long-term abuse

curtilage

the area immediately surrounding the home

defense of consent

the justification that competent adults voluntarily consented to crimes against themselves and knew what they were consenting to

voluntary consent

consent was the product of free will, not of force, threat of force, promise, or trickery

knowing consent

the person consenting understands what she’s consenting to; she’s not too young or insane to understand

authorized consent

the person consenting has the authority to give consent

civil commitment

a noncriminal (civil) proceeding in which courts have the power to decide if defendants who were insane when they committed their crimes are still insane

reason

psychologists call it “cognition”; the capacity to tell right from wrong

will

psychologists call it “volition,” most of us call it “willpower”; in the insanity tests, it refers to defendant’s power to control their actions

right-wrong test (McNaughtan Rule)

the defendant suffered a defect of reason caused by a disease of the mind, and, consequently, at the time of the act didn’t know what she was doing or that the act was wrong

mental disease

most courts define it as psychosis, mostly paranoia and schzophrenia

mental defect

refers to mental retardation or brain damage severe enough to make is impossible to know what you’re doing, or if you know, you don’t know that it’s wrong

product of mental illness test (Durham rule)

acts that are the “products”of mental disease or defect excuse criminal liability

diminished capacity

a failure-of-proof defense in which the defendant, incapable of the requisite intent of the crime charged, is innocent of that crime but may as well be guilty of a lesser one

diminished responsibility

an excuse defense in which the defendant argues, “What I did was wrong, but under the circumstances I’m less responsible

waiver to adult criminal court

meaning the juvenile court gives up its jurisdiction over the case and turns it over to the adult criminal court

involuntary intoxication

an excuse for criminal liability in all states; it includes cases in which defendants don’t know they’re taking intoxicants or know but are forced to take them

objective test of entrapment

if the intent originates with the government and their actions would tempt an “ordinarily law-abiding” person to commit the crime, the court should dismiss the case

complicity

establishes when you can be criminally liable for someone else’s conduct; applies criminal liability to accomplices and accessories

vicarious liability

establishes when a party can be criminally liable for someone else’s conduct because of a relationship; transfers the criminal conduct of one party to another because of their relationship

agency theory

the idea that we’re autonomous agents with the freedom to choose our actions and come accountable for someone else’s actions when we voluntarily “join in and identify with those actions”

forfeited personal identity theory

the idea that when you choose to participate in the crime, you forfeit your right to be treated as an individual; “your acts are my acts”

accomplices

participants before and during the commission of crimes

accessories

participants after crimes are committed

principals in the first degree

person who actually commit the crime

principals in the second degree

persons present when the crime is committed and who help commit it (lookouts and getaway drivers)

accessories before the fact

persons not present when the crimes are committed but who help before the crime is committed (for example, someone who provided a weapon used in a murder)

accessories after the fact

persons who help after the crime is committed (harboring a fugitive)

accomplice liability

liability that attaches to participation before and during a crime (prosecution for the crime itself)

accessory liability

liability that attaches for participation after crimes are committed (prosecution for a minor offense other than the crime itself)

conspiracy

an agreement to commit some other crime

Pinkerton rule

the crime of conspiracy and the crime that conspirators agree to commit are separate offenses

accomplice actus reus

defendant took “some positive act in aid of the commission of the offense”

mere presence rule

a person’s presence at, and flight from, the scene of a crime aren’t enough to satisfy the actus reus requirement of accomplice liability

accessory

accessory after the fact; usually a misdemeanor

respondeat superior

a doctrine in tort law that makes a master liable for the wrong of a servant; in modern terms, an employer may be liable for the wrong of an employee

parental responsibility statutes

based on parents’ acts and omissions; differ from vicarious liability statutes, which are based on the parent-child relationship

crimes against public order/quality of life crimes

crimes like public drinking, aggressive panhandling, harassment, graffiti and vandalism, and street prostitution, among others

order

acting according to ordinary people’s standard of “good manners”

liberty

the right of individuals to come and go as they please without government interference

disorderly conduct crimes

offenses against public order and morals

\-actual and constructive

actual disorderly conduct

breach of the peace misdemeanor that includes fighting in public and making unreasonable noise

construct disorderly conduct

conduct that “tends to provoke or excite others to break the peace”

broken windows theory

minor offenses or disorderly conduct can lead to a rise in serious crime

vagrancy

ancient crime of poor people wandering with no visible means of support

loitering

the crime of remaining in one place with apparent purpose

time, place, and manner test

to be constitutional, restrictions on free speech can’t be based on the content of the speech, must serve a significant government interest, and leave open other channels of expression

injunction to abate public nuisances

court orders to eliminate the particular nuisance

civil gang injunctions (CGI)

noncriminal lawsuits brought by cities seeking restraining orders to bar gang members from gang activities

victimless crimes

crimes involving willing adult participants who don’t see themselves as victims

\-ex. prostitution

treason

the crime of levying war against the US or of giving aid and comfort to its enemies

adherence to the enemy

breaking allegiance to your own country by forming an “attachment to the enemy”