Defenses

Question 1

What are the eight defenses? (MIND VISE)

Answer 1

1. Mistake
2. Insanity
3. Necessity
4. Duress
5. Voluntary Intoxication
6. Infancy
7. Self-Defense
8. Entrapment

Question 2

Insanity

indispensable Requirement

Answer 2

Defendant must have mental disease or defect

Question 3

M’Naghten Test

majority–insanity

Answer 3

The defendant must prove that he either:

(1) did not know that his conduct was wrong, OR
(2) did not understand the nature of his conduct

Question 4

MPC Test

insanity

Answer 4

Defendant must establish that he lacked the substantial capacity to either:

(1) appreciate the criminality of his conduct (cognitive option), OR
(2) conform his conduct to the requirements of law (volition option)

Question 5

Insanity

NY

Answer 5

This rule is more lenient that the M’Nagten rule but not as generous as MPC

A person is not criminally responsible for conduct if, at the time of the conduct:

(1) Cognitive test: defendant lacked substantial capacity to know or appreciate either:
(a) the nature and consequences of his conduct, or
(b) that his conduct was wrong
(2) Notice: A defendant must notify the prosecutor of his intention to raise the insanity within 30 days of entering a “not guilty” plea

Question 6

Insanity v. Incompetency

Answer 6

Insanity: The issue is whether the defendant was insane at the time of the crime. If he was, the defendant is not guilty by reason of insanity

Incompetency: The issue is whether at the time of trial, the defendant cannot either:
   (a) understand the nature of the proceedings against him; OR
   (b) assist his lawyer in the preparation of his defense.
If either (a) or (b) is established, trial is postponed until the defendant regains competency

Question 7

Voluntary Intoxication

common law

Answer 7

(1) can be a defense to specific crimes ONLY
(2) cannot, therefore be a defense to malice, general intent, or strict liability crimes
(3) generally requires such severe prostration of the faculties that the defendant cannot form the requisite specific intent

Question 8

Voluntary Intoxication

NY

Answer 8

(1) can be a defense to intent crimes and knowledge crimes, if the intoxication prevents the defendant from forming the required state of mind
(2) cannot be a defense to crimes of recklessness, negligence, or strict liability

Question 9

Infancy

common law

Answer 9

(1) if, at the time of the crime, the defendant’s age is less than 7, prosecution is not allowed
(2) If, at the time of the crime, the defendant’s age is less than 14, there Is a rebuttable presumption against prosecution
(3) If, at the time of the crime, the defendant’s age is 14 or older, prosecution is allowed.

Question 10

Infancy

NY

Answer 10

(1) If the defendant is under 13, criminal prosecution as an adult is not allowed;
(2) If the defendant is 13, criminal prosecution as an adult is allowed for second degree murder.
(3) if the defendant is 14 or 15, criminal prosecution as an adult is allowed for serious cries against persons or property
(4) If the defendant is 16 or older, criminal prosecution as an adult is allowed for ANY crime

Question 11

Mistake of Fact

common law

Answer 11

Whether mistake of fact is an defense depends on underling mental state so:

1. Specific Intent: ANY mistake of fact (even an unreasonable one) will be a defense
2. Malice or General Intent: only a reasonable mistake of fact will be a defense
3. Strict Liability: mistake of fact will never be a defense

Question 12

Mistake of Fact

NY

Answer 12

Mistake of fact will be a defense where it negates the required mental state:

1. Intent, Knowledge, Recklessness: any mistake of fact (even a reasonable one) is usually a defense
2. Negligence: only a reasonable mistake of fact is a defense
3. Strict Liability: mistake of fact is never a defense

Question 13

Mistake of Law

NY and common law

Answer 13

Generally not a defense UNLESS the statute specifically makes knowledge of the law an element of the crime

Question 14

Use of Nondeadly Force (Self-Defense)

Answer 14

A defendant may use nondeadly force in self-defense if he

(1) reasonably believes such force is necessary
(2) to protect against an immediate use
(3) of unlawful force against himself

Question 15

Use of Deadly Force (Self-Defense)

NY Distinction

Answer 15

A defendant may use deadly force in self-defense, if he reasonably believes he is facing an imminent threat of death or serious bodily harm UNLESS:

 (i) he is the first aggressor (Initial Aggressor Rule and NY)
 (ii) with intent to cause physical injury to another, he provoked the use or imminent use of force (NY only)
 (iii) the use of imminent use force is pursuant to an unlawful combat agreement

Question 16

How can an initial aggressor regain right to use deadly force?
(plus NY distinction)

Answer 16

He can regain the right to use deadly force in self-defense if:

(1) he withdraws from the fight and communicates that withdrawal to the other person (withdrawal); OR
(2) the victim suddenly escalates a nondeadly fight into a deadly one (escalation)

NOTE: In NY the initial aggressor must withdraw before using deadly force in self-defense, EVEN IF the other party suddenly escalates a nondeadly fight into a deadly one.

Question 17

The Retreat Rule

NY and minority

Answer 17

Retreat is required, unless defendant:

(1) cannot retreat in complete safety, or
(2) is in his home and is not the initial aggressor (doorway is nor considered in the dwelling)
(3) is a peace officer or acting under a peace officer’s direction
(4) believes the other person is committing or attempting kidnapping, forcible rape, forcible criminal sexual act, or robbery or
(5) believe the other person is committing burglary

Question 18

Mistake (self-defense)

Answer 18

(1) Reasonable mistake: complete defense
(2) Unreasonable mistake:
(a) NY/Majority Rule: no defense
(b) Minority/MPC Rule: mitigates but does not exonerate
(i) Imperfect Self-Defense: an unreasonable belief in the need to use deadly force in self-defense will mitigate murder to (voluntary) manslaughter

Question 19

Use of Force to Prevent a Crime

Answer 19

(1) Nondeadly force may be used, if reasonably necessary, to prevent any serious breach of the peace
(2) Deadly force may only be used to prevent a felony risking human life

Question 20

Defense of Others

Answer 20

A defendant may use force, even if deadly, to protect others just the same as he could use it to defend himself

Question 21

Defense of Property

use of deadly force

Answer 21

An occupant may use deadly force inside her dwelling when:
(1) an intruder has gained entry in a violent manner AND
(2) the occupant reasonably believes that the use of deadly force is necessary to prevent a personal attack on herself or someone in the dwelling
Otherwise deadly force may not be used to defend property.

Question 22

Resisting Arrest

Majority Rule

Answer 22

If the defendant knows or reasonably should know that the person performing the arrest is a police officer AND the arrest is unlawful, the defendant may use nondeadly force to resist the arresting officer.

Question 23

Resisting Arrest

NY

Answer 23

If the defendant knows or reasonably should know that the person performing the arrest is a police officer force may not be used to resist an arrest, even an unlawful one, unless the arresting officer uses excessive force.

Question 24

Use of Deadly Force by Law Enforcement

Answer 24

An officer may use deadly force only when doing so is reasonable under the circumstances

Question 25

Necessity (Choice of Evils)

Answer 25

Conduct that is otherwise criminal is justifiable if the defendant reasonably believes that the conduct was necessary to prevent a greater evil.

Question 26

When is the necessity defense unavailable?

Answer 26

The defense is unavailable if: (1) defendant causes the death of another person to protect property; or (2) defendant is at fault in creating as situation that creates a choice of evils

Question 27

Duress

Answer 27

If the defendant was coerced to commit a crime because of a threat, from another person, of imminent death or serious bodily injury to himself or a close family member, his conduct is excused.

Question 28

When is the duress defense unavailable? | plus NY distinction

Answer 28

Duress cannot be a defense to homicide NOTE: In NY duress is an affirmative defense to ALL crimes, including homicide.

Question 29

Entrapment | plus NY

Answer 29

If a defendant believes that the government unfairly tempted him to commit a crime, he may claim entrapment. To prevail on the defense, the defendant must prove that: (1) the criminal design originated with the government, AND (2) the defendant was not predisposed to commit the crime NOTE: In NY entrapment is an affirmative defense and the prosecution can introduce evidence of the defendant's past criminal acts in its direct case, if the defendant pleads entrapment. D is entitled to entrapment if a reasonable view of the evidence supports the charge, even if the defendant's testimony is inconsistent and he denies the crime charged

Question 30

Burden of proof for defenses | NY

Answer 30

Defenses and affirmative defenses are created by statute. Defense--must be disproved by the prosecution beyond a reasonable doubt Affirmative Defenses--must be raised and proved by the defendant by a preponderance of the evidence.