Defenses

Failure of Proof

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 Mistake (Failure of Mistake of Fact Mistake of Law
Proof) SI: honest Same Law – actor is mistaken about the law they are charged with violating. Not a
•Must be honest, negating the specific intent element defense
GI: hones and reasonable - Exceptions
•Exceptions o Authorized reliance
o Moral wrong doctrine – • Depends on source’s authority
malum in se crimes (inherently immoral) o Due process/ fairness – very rare. Probably
 Statutory rape limited to passive conduct
o Legal wrong doctrine
 You know youre Different Law – actor is mistaken about a different law from the one charged with
committing a crime, but think it’s less serious than it is violating.
- Specific intent – is a defense
- General intent – is NOT a defense
- Mistaken that not committing a crime in reliance on a different law
Justification
All elements of the crime exist, but under special circumstances, the harm caused is socially desirable and does not deserve criminal liability. Harm Caused < Harm to be avoided
Self Defense Non – Deadly Force MPC Minority Majority
 Actual (Honest) + reasonable belief of imminent unlawful force • Belief need NOT be  recognizes Imperfect privilege as  allow the use of non-
 Use of Force must be necessary and proportionate reasonable mitigation (honest but NOT deadly force to resist
 No duty to retreat • Use of force of actor believes reasonable) an improper arrest by
 Imperfect Privilege in immediacy  Do NOT allow the use of deadly a known police
•Honest but unreasonable • Do NOT allow the use of force officer
•D uses excessive force deadly force
•D is the aggressor

Deadly Force MPC Minority Majority

 Actual + reasonable belief of unlawful imminent death or GBI
 Use of Force must be necessary and proportionate • recognizes imperfect privilege for
• Cannot use deadly force to protect property • Belief need NOT be honest but unreasonable belief
• Cannot use deadly force to resist arrest by a known police officer reasonable • Imperfect Privilege for Excessive
 Defendant cannot be the initial aggressor • Immediately necessary Force
• Withdrawal = unequivocal communication of remove from conflict instead of imminent
• Sudden escalation = non-deadly force escalates into deadly force
 No duty to retreat
• Imperfect privilege in some jxn is D is the aggressor CA
 CL and Minority: Duty to retreat (only if completely safe) BUT note • recognizes imperfect
exceptions: privilege for honest
• Castle doctrine • Duty to retreat with exceptions but unreasonable
• Making lawful arrest (same as CL) belief
• Robbery victim need not retreat
Defense of CL: Alter Ego Rule Minority Majority
Others  require special relationship Reasonable appearance
 family member or employment rule
 alter ego rule
Defense of CL: Modern:
Dwelling/ • Actual and reasonable belief of necessity • Actual entry may not be required
habitation • Deadly force OK • Deadly force OK
(castle) • Forcile and unlawful entry • D must actually and reasonably believe that the trespasser intends to commit a felony
or injure D or occupant
Defense of • Actual and reasonable belief that own property Common law:
Property (not  Actual and reasonable belief that own property is in immediate danger of unlawful Limited the defense to one’s own property but modern statutes may expand the defense
castle) interference to include on in lawful possession, or one who has a duty to protect the property, or if
 Actual and reasonable belief that that use of force is necessary the owner has requested help, of if a special relationship exists between the owner and
 Generally deadly force NOT OK the defendant.

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Defense of law Crime prevention and termination CL: Modern:
enforcement • Actual and reasonable belief that a crime is being committed/ about to • cannot use deadly force to prevent a • deadly force ok only if the crime is a
be committed misdemeanor but ok for prevention of a “dangerous” or “atrocious” felony
o felony •
CL: Modern:
Arrest • reasonable force • Authority to arrest
• Deadly force NOT ok for misdemeanors justified to make a governed by statute and
• Warrant NOT necessary to arrest for a crime committed in the person’s presence. lawful arrest or the constitution
o Note: Any officer may arrest for a felony without a warrant even if the felony was not committed in his/ her prevent escape of
presence if the officer reasonably believes that a felon was committed and that the person to be arrested committed one already in
the felony custody
• Arrest warrant supported by probable cause (arrest = seizure under the 4th amendment) needed to be home arrest
• Warrant NOT needed to arrest in a public place
o Felony:
 Officer must have reasonable grounds to believe that a felony has been committed and that the person to be
arrested committed the felony
o Misdemeanor:
 Person to be arrested must have committed the crime “in the presence” of the officer (awareness).
• Force used must be reasonable
• Deadly force NOT reasonable to apprehend a fleeing misdemeanant
• Deadly force ok for fleeing felon only if the felon threatens death or GBI and deadly force is necessary to prevent
escape
• Private persons – same as above except:
• Deadly force may only be used if the suspect is actually guilty of a felony. Reasonable appearances is NOT sufficient.

 Resisting arrest
• Right to resist person NOT known to be a police officer
o Deadly force ok but must be necessary
• Right to resist known police officer
o Majority: Only non-deadly force may be used to resist an unlawful arrest
o Minority and MPC: cannot resist
• Resisting arrest is a separate crime
Necessity  Actual and reasonable belief that conduct is immediately necessary to avoid harm > harm caused by defendant’s conduct MPC:
(choice of  Necessity created by natural forces (CF. Duress) but • Does not limit necessity to natural forces
evils)  Not available for homicide • Does not exclude the defense for homicide
 D must not be at fault in creating the situation? • Liabilities follows intent (justified conduct) – net
 No reasonable available alternatives lives saved
 CL: No duty to choose • Problem with MPC is that it doesnt take into
• The crime that you are charged with requires intent. (MPC and maybe minority) acount qualitative values..
o You have acted negligently, then acted intentionally committed another crime, then you claim defense of necessity
to prevent a greater harm. MPC and minority
o Charged with a crime that you act intentionally, negligent in creating the situation, can you claim the defense of - D isn’t at fault for the sitution
necessity even though you were negligent in the first place. o Can’t put someone in danger who
o Your fault (culpable mental state) in creating the situation, precludes the defense of necessity if the crime that you wasn’t already in it
are charged with is the same fault that you have, or less.
o At fault in creating the situation (either negligently or reckless), then create the 2nd crime with intent, then can use the
defense of necessity.
 Less than culpability that’s charged for the crime.

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 Direct Civil disobedience
o Violating a law or interfering with a govt policy that is not, itself, the object of the protest.
o Not the crime that you are protesting, a different one
Indirect Civil Disobedience
• Protesting the existence of a law by breaking that law or by preventing the execution of that law in a specific instance in
which a particularized harm would otherwise follow.
• Violating the crime that you are protesting
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Excuses
Duress o Actual and reasonable belief of an immediate threat of death or GBI MPC: Majority:
- person didnt o Threat may be to self or immediate family  A reasonable person (objective) in the defendant’s • No a defense to
have a choice position (subjective) would be unable to resist murder
- free will
 Some jxn permit the threat to any 3rd party
 allows the defense of duress for murder
removed  Limited to human threats
o Actual and reasonable belief that the threat will be inflicted carried out • FMR: Defense of duress to the predicate felony
- = NO FMR.
o No reasonable opportunity to escape
o Defendant not at fault for being in the situation
 Note: the actor chooses to commit the crime but the law excuses the actor’s
criminal liability because the actor lacked free will. Morally unjust to punish a
coerced actor.
 CL: Not a defense to murder
Intoxication Voluntary (self- induced) Modernly: Minority:
• CL and Majority: Limited to specific intent crimes but, • defense may be limited to murder to mitigate to • have abolished
• Traditionally, NOT available for crimes requiring malice, recklessness, negligence, or manslaughter Voluntary
strict liability. Intoxication as a
• CF. “settled insanity” defense to any
o Permanent or alteration of the brain crime
o The situation where because of long term use of an intoxicant, there has been a long
term chemical alteration of your brain
Involuntary intoxication – a defense to both general and specific intent crimes
• Coerced/ duress
• Pathological – unusual sensitivity susceptibility
• Mistake/ fraud
• Unexpected reaction from prescribed drug
Insanity Step 1: Competency to stand trial – may be raised at any time during the proceedings
• Present ability to consult with attorney with a reasonable degree of rational understanding
• Assist in own defense
• Rational and factual understanding of the proceedings
• No deterrent value to punishing one who does not understand why he/she is being punished.
• If competent then NOT a defense
• D’s state of mind at the time of trial
D competent to stand trial
 Understand the nature of the proceedings and communicate with attorneys
• Because of due process and fairness
• 6th amendment – guarantees to jury and effective assistance of counsel. Counsel cannot assist if D cant communicate.
Issue that anyone can raise and be raised at any point in trial
If incompetent to stand trial, then civil commitment until competent
• Due process requires that the person be held only so long as reasonably necessary to determine competency for trial.
• If the defendant will not become competent in the foreseeable future, the State must institute civil commitment proceedings
• Forced medication for trial? Yes, under certain circumstances
o If person is incompetent but takes medication to become competent, then they can stand trial

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 Post – acquittal commitment (not guilty by insanity NGBI)
• Some states: automatic commitment to mental health institution
• Other states: temporary detainment until civil commitment proceedings
• Civil commitment requirements:
o Mental illness AND
o Dangerous
o Preponderance of the evidence standard ok post acquittal (but clear and convincing standard otherwise required for involuntary commitment)
 Note: sexual predator laws: involuntary civil commitment post- conviction (growing minority trend, including CA)
Step 2: Legal M’ Naghten (Majority, including CA) – aka right- wrong test
Insanity Tests o A mental disease or defect and,
- preponderance o Did the D know that their action was wrong?
standard (maj), o If you know your actions are wrong, then you are NOT insane under this test
clear and o Criticism
convincing  Focuses on cognition and doesn’t take into account human behavior and volition
standard (fed and o All or nothing test
minority)
o The defendant lacks the ability to either:
 Understand the nature and quality of his/ her actions, OR
 Know the wrongfulness of his/ her actions
• Moral wrong (society v. personal)
o Society (maj)
 IF D knows wrong by society’s standards, then NOT insane
 Use this one
o Hybrid (minority jxn)
 Does the D know that his actions were morally wrong by society’s standard, if society knew
what he knew
o Ds personal morals
 If D knows by personal morals is wrong, then NOT insane
 No one uses this standard
• Legal wrong (CA – uses either moral or legal wrong)
o If you knew it was wrong, then you are NOT insane.
• Ex: delusional defendant – must determine whether his/her actions are “wrong” if the facts were as the Defendant believed them to be. If the defendant knew that
his actions were “wrong”, then NO insanity defense
Irresistible impulse test – aka control test – used as an additional alternative with M’Naghten test
o The defendant was unable to control his/ her actions OR conform his conduct to the law.
o Allows the addition of volitional element
Durham – aka Product test (small minority)
o The defendant is insane if his/ her actions were the “product” of a mental disease or defect. “But for” the mental disease or defect, the Defendant would not have committed the
crime.
o Reliance on expert testimony - criticism
MPC – Substantial Capacity Test (growing trend)
o Gradations of comprehension and understanding
o A mental disease or defect, AND
o The defendant lacks the substantial capacity to either:
 Conform his/ her conduct to the law, OR
 Appreciate the “wrongfulness” of his/ her conduct
• Moral wrong (society v. personal)
• Legal wrong
Procedural Issues
o Burden of Proof rests on the D
o Bifurcated trial (Minority including CA)
o A few states have abolished the insanity defense
o An affirmative defense
o D’s state of mind at the time crime was committed
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 o There are procedural rules, you have to bring it up at certain time. Time restrictions.

Diminished  As a result of a mental disease or defect, the defendant lacked the mens rea for the crime (failure of proof)
Capacity
 Growing trend to abolish, including CA
 May be limited to specific intent crimes
 May be limited to homicide only to mitigate to manslaughter.
 No an affirmative defense
 EMED was designed to encompass this
• So EMED is broader than heat of passion
Infancy  Minors get different proceedings (juvenile process) because the purpose there is to rehabilitate, not punish Modern:
- Juvenile courts have exclusive jxn over young kids and
 CL:
concurrent jxn over older kids
• Under 7, conclusive presumption of no criminal capacity (so no liability)
• 7-14 rebuttable presumption of criminal capacity except rape (no liability if
rebutted)
• over 14, treated as adults (liability)
Cultural Defense  Small minority of states use a De Minimus Statute to allow for this flexibility in the law. Allows for the
recognition of the melting pot.
 Rotten Background