Affirmative Defenses

Question 1

Self-Defense Common law

Answer 1

1. A nonaggressor may use the force necessary to protect against the imminent threat of unlawful force.
   Necessary Use of Force:
   a. Proportional, not excessive
   b. Imminent Danger
   c. Cannot retreat
   Unless Castle Doctrine applies (US v. Peterson)
   d. Based on genuine and reasonable belief.
   Physical attributes and past experiences with the victim are both permitted in the reasonableness analysis.

Question 2

Duty to Retreat CL (self-defense)

Answer 2

Duty to retreat IF it can be accomplished in complete safety
1. Castle exception. No duty to retreat inside one’s own home
2. statutory changes. Stand your ground laws curtailing duty to retreat.

Question 3

Battered spouse Syndrome (self-defense)

Answer 3

Does not fulfill imminent danger requirement of self-defense (Norman)
May be allowed for confrontational homicides
Even more minority jurisdictions
1. Stand alone defense that reduces murder to manslaughter
2. Alternative to imminence requirement
Elements
1. The defendant is convinced that the batterer was going to kill them.
2. Violent assaults had happened previously.
3. Some unique incident convinces the battered that the batterer really was going to kill them next time.

Question 4

MPC 3.04 Self Defense and 3.09

Answer 4

a. The use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by another.
2. Deadly force permissible to protect against death, serious bodily injury, forcible rape, and kidnapping

1. Belief in self-defense is subjective, but negligence and recklessness are still a bar to self defense for crimes that only require negligence or recklessness as a mens rea (E.G. Negligent homicide)

Question 5

First Aggressor Rules

Answer 5

1. The first aggressor whose purpose was not to provoke deadly conflict may still use deadly force, assuming he could not retreat in safety or is at home or work (and victim was not colleague)
2. The first aggressor whose purpose was to provoke deadly conflict may use deadly force to protect against deadly force only if he withdraws from the conflict.

Question 6

Defense of others.

Answer 6

An intervenor can use force to the extent the person in danger would apparently be justified in using force. (People v. Kurr)

Question 7

Defense of Dwelling

Answer 7

1. There is a right to use lethal force when it is necessary to prevent commission of a felony within the home (State v. Boyett)
2. Based on a reasonable belief
3. No need to cross the threshold like Castle Doctrine
4. Law Enforcement Defenses
   a. Force to prevent crime, arrest, prevent escape
   b. Can sometimes be used by private citizens
   c. No deadly force except violent felonies
   d. Excessive force in “seizing” someone violates the 4th Amendment

Question 8

Necessity

Answer 8

1. To prevent significant evil
   a. Clear and imminent danger
2. There is no adequate alternative
3. And the harm caused is not disproportionate to the harm avoided (Nelson v. State)
   NOTE: Sometimes limited to natural disasters.

Question 9

Lovercamp Escape

Answer 9

It is a defense for a prisoner to escape;
1. The prisoner is faced with specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future.
2. There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory
3. There is no time or opportunity to resort to the courts
4. There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape
5. The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. (Jorgensen v. State) (People v. Unger)

Question 10

Necessity Murder

Answer 10

Never ? (The Queen v. Dudley & Stephens)

Question 11

MPC Necessity

Answer 11

A. Justified if:
1. D believed that the conduct is necessary to avoid harm to self or other (requires actually awareness)
a. Harm avoided greater than harm of law prohibiting his conduct (social judgment, not defendant’s belief)
2. Not covered by a legislative exemption
3. Not contrary to plain legislative intent
B. If the defendant was reckless or negligent in assessing the situation, or in bringing about the situation, D cannot use necessity to defend against a crime for which the mens rea is recklessness or negligence, respectively.
C. No exclusion for homicide
D. No mention of immediacy or imminence

Question 12

Duress

Answer 12

1. Immediate threat of death or serious bodily injury, and
2. Well-grounded fear that threat will be carried out, and
3. No reasonable opportunity to escape the threatened harm other than through committing the crime. (US v. Contento Pachon)

Question 13

Difference between Necessity and Duress

Answer 13

Necessity requires choosing between the lesser of two evils and typically involves natural disasters
Duress requires an external threat from a human, leaving the defendant with no choice but to follow orders.

Question 14

Duress MPC 2.09

Answer 14

a. Defendant compelled to commit the offense by the use or threatened use of unlawful force upon her or another person.
b. A person of reasonable firmness in her situation would have been unable to resist the coercion.
c. Defense unavailable if she acted recklessly to place herself in the situation.
d. The defense is available if she acted negligently (unless the crime for which she is charged only requires a mens rea of criminal negligence).
e. Distinguish from common law:
1. The MPC duress defense applies even if the criminal act is different from the act that the coercer/threatener requested
2. No exclusion for homicide

Question 15

Intoxication Defense

Answer 15

Voluntary intoxication negates SPECIFIC INTENT, but it does NOT negate GENERAL INTENT
MPC 2.08
a. Intoxication is not a defense unless it negates an element (except see Section 4)
b. If recklessness establishes an element of the offense, and due to self-induced intoxication, the actor is unaware of a risk they would have been aware of had they been sober, such awareness is immaterial
c. (Intoxication does not qualify as a disease for the purposes of the MPC’s insanity defense)
d. Exceptions where an insanity-type defense is possible: (a) intoxication is not self-induced, or (b) the actor has a pathological reaction to self-induced intoxication, meaning grossly excessive and Defendant does not know their susceptibility

Question 16

M’Naghten Insanity Test

Answer 16

a. Cognitive Incapacity
1. Did the Defendant have the cognitive capacity to know the nature and quality of the act they were doing?
b. Moral or Legal Incapacity
1. Did the Defendant have the capacity to know their actions were wrong or illegal?
Traditionally, this means morally wrong, but sixteen states have reoriented to whether the defendant knew his actions were legally wrong

Question 17

Irresistible impulse

Answer 17

a. Defendant deprived of his will
b. Did not have the capacity to avoid his actions, and
c. totally deprived of mental capacity to control his actions at the time of the incident
d. three states permit acquittal under this test

Question 18

Products test

Answer 18

a. did the mental disease or defect cause the person to commit the act?
only NH uses

Question 19

MPC 4.01 Insanity Test

Answer 19

a. As a result of mental disease or defect:
1. the defendant lacked substantial capacity to appreciate the criminality [wrongfulness] of his conduct
2. defendant lacked substantial capacity to conform his conduct to the requirements of the law
NOTE: Wrongfulness can be analyzed by asking “Would society, under the circumstances as the defendant honestly but mistakenly understood them, have morally condemned his actions?” (State v. Wilson)