Defenses Flashcards
(18 cards)
Self Defense (CL)
Elements: Defendant must
1. Reasonably believe that
- Must (objectively) and (subjectively) believe force is necessary.
- It does consider (physical attributes and life experience – only some courts consider cumulative provocation + require anger instead of fear)
- Mistake must be reasonable Goetz.
2. Deadly force is
- Deadly force is anything that will cause death/serious bodily harm.
3. Necessary to prevent a
- Most jurisdictions do not require retreat, but some do if you can retreat in complete safety.
4. Threat of imminent and unlawful use of
- If you have to go look for your gun, then shoot, the threat was not imminent.
- Force must be unlawful (cannot shoot at law enforcement)
5. Deadly force against the defendant
- Cannot use deadly force to prevent non-deadly force.
- The use of force must be proportionate (considers your weakness)
6. Who isn’t the aggressor
- aggressor if they exert behavior that is definitely likely to cause bodily harm/death
- aggressor if objectively does something which leads to conflict which involves injury or death.
- aggressor if you reach safety and then re-enter the conflict (especially if done with deadly force) Peterson
- mere words = never enough to make you an aggressor.
- Withdraw: you can lose your status as “aggressor” by making it clear you are withdrawing.
Common Law Self defense notes
Castel Doctrine: You do not have to retreat before using self defense when you are on your own propery unless you are the aggressor.
When non-lethal force is used: Must respond with non-lethal, but there is never a retreat requirement. (can only respond with lawful force)
- Some place you can use for offensive contact.
- If you attack using non-lethal, and they respond with lethal, you can now use lethal.
Self Defense (MPC)
Deadly Force: To use deadly force, the defendant must believe that such force is immediately necessary to protect himself against death, serious bodily harm + some other crimes (rape)
- Must believe that the force is necessary to protect himself against death, serious bodily harm.
- Does not count if you provoked with the (subjective) purpose of causing death or serious bodily harm.
- You can loose your aggressor status by withdrawing, but it must in some way be made clear to the other - Not allowed if the actor can retreat in complete safety, or comply with the demand. (not required if in a dwelling or at work or non-lethal force.)
- Force must be proportional
- Self-defense is not allowed if he subjective belief that force is necessary negligently or recklessly and the culpability requirement for the offense is negligence or recklessness respectively.
- This means that if your belief is unreasonable, you can only be charged with negligent/reckless homicide, not murder. - Imminence: allows the use of force even if attack will only happen soon. (better chance of battered spouse defence)
- If you attack with non-lethal, and they respond with lethal, you can now use lethal.
- Can only use self defense against unlawful force.
Self defense non-lethal (MPC)
General Rule: The use of force is justifiable if the actor believe (subjective) that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
- If you provoke with non-lethal + they respond with non-lethal, you cannot use self-defense when you respond with more non-lethal.
Battered Wife (CL)
A longer period of physical abuse + a person believes there is no possibility of escape.
1). Reasonably believe that
- this is a reasonable person after years of abuse.
2). Deadly force is
3). Necessary to prevent a
- Courts require retreat if can be done in complete safety when co-habitants.
4). Threat of imminent and unlawful use of
- Killing someone while asleep is not imminent.
5). Deadly force against the defendant
6). Who isn’t the aggressor
- Killing spouse while asleep = aggressor.
Battered Wife (MPC)
Imminent: Focuses on the immediate need to use force – might allow for killing while asleep.
Necessity (CL)
Elements
1. Defendant must (objectively and subjectively believe it conduct is necessary to avoid a greater harm and there is no reasonable alternatives.
- Foreseeable harm avoided must actually be greater than harm of the crime
- Defendant must not be at fault (negligence+) in causing the choice of evils.
- not a defense to intentional homicide. Regina
Unintentional - Depraved Heart: unclear – argue both ways.
- All other unintentional Homicide – Can use necessity. (including felony murder)
- Necessity is normally not a defense to civil disobedience – Haskell – some courts allow it.
(1) Was defendant at fault in bringing about situation?
(2) What harm did the defendant reasonably foresee?
(3) What crime did the defendant do to avoid the harm?
(4) Did the defendant reasonably believe the crime was necessary (including no reasonable alternatives) to avoid the
harm?
(5) Does the court/jury think the harm foreseen was greater than the crime to avoid it?
Necessity (MPC)
Defendant must subjectively believe the conduct is necessary to avoid harm and there is no reasonable alternative.
(a) The forseeable harm to be avoided by the conduct must be greater than the harm of the crime
(b) No other defenses cover the situation
- No defense available for a offense requiring recklessness or negligence if the defendant was reckless or negligent in: (a) causing the situation requiring the necessity defense or (b) assessing the necessity for his conduct to avoid harm. (mistake)
- (Maybe purpose or knowledge will also work, but there is an argument that it does not).
- Necessity is not a defense for civil disobedience
- Can be a defense to homicide.
Duress (CL)
Defense if:
(1). Defendant reasonably (subjectively and objectively) believes, at the time of the criminal act:
(a). that they are faced with an immediate and genuine threat of death or serious bodily injury
(b). to self or another unless they commit the requested crime (and)
(c). that there is no meaningful alternative/means of escape (and)
(d). the defendant was not at fault (negligence+) in becoming exposed to the threat.
Durress (CL) Notes
- This is only a defense for the crime you were instructed to commit.
The is a loose imminence requirement – meaning harm must happen soon (ill kill your family)
- No duress defense for intentional homicide.
Unintentional - Depraved Heart: unclear – argue both ways.
- All other unintentional Homicide – Can use necessity. (including felony murder)
Duress MPC
Defendant must subjectively believe there is a threat or force and the threat or force must be one that would compel an objective person of “reasonable firmness”
Duress MPC Notes
- Only needs to be threat or force enough to compel a person of reasonable firmness.
- Includes prior force which breaks down a persons will to resist.
- Allows you to use the defense for additional related crimes.
Unreasonable Belief: (mistake) - If defendant recklessly or negligently believe the threat exists, but it does not, he can only be guilty of a reckless/negligent crime.
Fault: - If defendant recklessly put himself in the situation = no defense.
- If defendant negligently puts himself in the situation = defense unless negligence offense.
No imminence requirement, just “reasonable firmness”
Can use duress as a defense against homicide.
Insanity (CL)
Tests:
M’Naghten (Majority)
(1). Mental illness that
(2). Causes the defendant not to know
(a). the nature or quality of the act (or)
(b). that the act was wrong. (Wrongful either criminal or would society condone it if your belief was true?)
Control/Irresistible impulse Rule
(1). Mental illness that
(2). Causes the defendant not to know
(a). the nature or quality of the act (or)
(b). that the act was wrong.
(and)
(3). Is unable to control their conduct
Product
Defendant’s crime was the product of mental disease or defect.
Insanity (MPC)
A person is not responsible for criminal conduct if at the time of such conduct, as a result of a mental disease or defect, he lacks substantial capacity to either:
(a). Appreciate the criminality (wrongfulness) of his conduct (or) < M’Naghten
- Wrongful means if you (objectively and subjectively) believe that if society knew everything you did, they would condone your conduct. or it was illegal.
(b). to conform his conduct to the requirements of the law.
Voluntary Intoxication (CL)
Voluntary Intoxication: (Failure of proof)
1. Defense to specific intent crime if they cannot form the specific intent because of intoxication.
- Remember attempt makes (general = specific)
- Accomplice (when it follows purpose/knowledge = defense, when following target crime + recklessness = no defense).
- Only felony murder when you had the mental state for underlying felony.
2. Not a defense to general intent crimes (even recklessness)
3. Can apply to Actus Reus under (Martin, Last act)
Involuntary Intoxication (CL)
Involuntary Intoxication
Types:
1. Coerced Intoxication
2. Innocent Mistake/trickery (you didn’t know it was an intoxicant/were tricked into taking it)
3. Unexpected Effect of Prescribed Medicine
4. Pathological (taking a small amount of something + having an unexpected result)
Rule:
Not guilty if:
(a). negates the mental state (except negligence)
(b). you are temporarily insane (use jurisdiction’s insanity test)
Voluntary Intoxication (MPC)
Voluntary Intoxication: (failure of proof)
Purpose: Defense if negated bc intoxication.
Knowledge: Defense if negated bc intoxication
Recklessness: No Defense
Negligence: No Defense
Involuntary INtoxication (MPC)
Involuntary Intoxication:
Intoxication which (a) is not self-induced or (b) is pathological is a defense if because of the intoxication the actor cannot appreciate its criminality (wrongfulness) or to conform his conduct to the requirements of the law.
Self-induced unless - pursuant to medical advice or one of the following circumstances applies.
Types:
1. Coerced Intoxication
2. Innocent Mistake/trickery (you didn’t know it was an intoxicant/were tricked into taking it)
3. Unexpected Effect of Prescribed Medicine
- Seems to imply it still works even if you knew you’d have a bad reaction.
4. Pathological (taking a small amount of something + having an unexpected result)
Rule:
Not guilty if:
(a). negates the mental state (except negligence)
- Recklessness might not count for Pathological (might be a mistake in drafting)
(b). you are temporarily insane (use MPC insanity test)
