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Criminal Law Bar Review > Defenses > Flashcards

Flashcards in Defenses Deck (19):

What are the excuse defenses?

1. Insanity,
2. Competency,
3. Diminished capacity,
4. Intoxication, and
5. Infancy.


What is insanity?

If a D is insane at the time of his criminal act, no criminal liability will be imposed.

There are four tests used in various jurisdictions:

M'Naghten Test:

A D will be relieved of criminal responsibility upon proof that, at the time of commission of the act, he was laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, not to know that what he was doing was wrong.

There is a split as to whether wrong is legal and moral wrongs.

Irresistible Impulse Test:

A D will be found not guilty where he had a mental disease that kept him from controlling his conduct.

Durham (New Hampshire) Rule:

A D is not criminally responsible if his unlawful act was the product of a mental disease or defect ("but for").

MPC Test:

A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Procedural Issues:

D is presumed sane until raising evidence.

In federal court, the burden of proof is clear and convincing evidence.

In state, it varies. The majority rule is preponderance of the evidence.


What is competency?

Incompetency typically refers to a doctrine that prevents Ds from being tried, convicted, or punished unless they have the sufficient present ability to consult counsel with a reasonable and rational understanding of the proceedings.

The burden of proof is preponderance of the evidence. In federal court, the burden in on the D. States can place the burden on the D.


What is diminished capacity?

The defense of diminished capacity is short of insanity, and requires proof that as a result of mental defect, the D did or did not have a state of mind that is an element of the offense.

This defense is used to negate the specific mental state.


What is intoxication?

Voluntary and involuntary intoxication is a defense to a crime when it negates the existence of an element of the crime.

Voluntary intoxication:

It may be a valid defense for a specific intent crime if it negates the requisite mental state, and may negate a purposeful or knowing mental state. However, it is not a defense to general intent crimes or recklessness, negligence, or strict liability.

Involuntary intoxication:

It is a defense to a crime, even if it does not negate an element of the crime.


What is infancy?

At common law, a complete defense due to incapacity existed for children under the age of 7. Children between the ages of 7-14 were rebuttably presumed to lack criminal capacity. Children over age 14 were held responsible as adults.

Many states have abolished the common law and established a specific minimum age requirement.


What are the justification defenses?

1. Self-defense
2. Defense of others
3. Defense of property;
4. Necessity;
5. Law enforcement defenses;
6. Duress; and
7. Public duty.


What is self-defense?

If a person has an honest and reasonable belief that he is in imminent danger of unlawful bodily harm, he may use reasonable force that is reasonably necessary to prevent such harm.

Deadly force can only be used in response to a threat of death or great bodily harm.

Reasonable force is the amount of force that is necessary to avoid the threatened harm.

An initial aggressor does not have the right of self-defense. However, he may regain the right in two ways:
1. upon complete withdrawal perceived by the other party; or
2. escalation of force by the victim of the initial aggression.

Generally, there is no duty to retreat. However, a number of jurisdictions do require retreat if it is feasible and can be done in safety before using deadly force. No retreat is necessary if it cannot be done safely or if the D is in his home, auto, or workplace.


What is defense of others?

A person is justified in using force to defend a third person to the same extent that that person would be justified in using force to defend himself.

Force must be reasonable and proportional.

The majority rule focuses on the reasonableness of the belief. If the D had a reasonable but mistaken belief, then the defense is available. The minority rule says that the D does not have any more right than the person being attacked.


What is defense of property?

Reasonable, non-deadly force is justified in defending one's property from theft, destruction, or trespass where the D has a reasonable belief that the property is in immediate danger and no greater force than necessary is used.


What is necessity?

Reasonable force is justified to avoid imminent injury resulting from natural forces where an individual reasonably believes that his criminal conduct is necessary to avoid a greater harm that would result from compliance with the law.

There is no defense of necessity if the D is at fault in creating the perilous situation.

At common law, necessity was never a defense to murder. The MPC allows a D to raise the defense if D kills one person in order to save the lives of many others.


What are law enforcement defenses?


A PO may use that amount of non-deadly force that he reasonably believes necessary to effect a lawful arrest or prevent the escape of the arrestee.

A PO may use deadly force only to prevent the commission of a dangerous felony or to effectuate an arrest of a person reasonably believed to have committed a felony where it reasonably appears necessary to the officer.

Private Citizens:

A PC is privileged to use non-deadly force that reasonably appears necessary to prevent the commission of a felony or a misdemeanor amounting to a breach of the peace.

A PC may use non-deadly force to make an arrest if the crime was, in fact, committed, and he reasonably believes the person against whom he uses the force committed the crime.

A PC may use the same amount of deadly force as a PO only if a dangerous felony is involved and the person against who he used the force is actually guilty of the crime.

A proper mistake is no defense to prevent the escape of a fleeing felon.

Resisting Unlawful Arrest

A D may use reasonable, non-deadly force to resist an unlawful arrest. A minority doe not permit this.


What is duress?

The defense of duress justifies crimnal conduct where the D reasonably believes that th eonly way to avoid unlawful threats of great bodily harm or imminent death is to engage in unlawful conduct.

This is not a defense to murder.


What is public duty?

A public official, PO, or PC offering assistance is justified in using reasonable force against another or in taking the property of another provided that he is acting within his authority pursuant to a law, court order, or process that is valid or that he reasonably believes is valid.


What is domestic authority?

Parents may use reasonable force on the child to promote the child's welfare..


What is entrapment?

The defense of entrapment exists where the criminal act is the product of creative activity originating with law enforcement officials and the D is in no way predisposed to commit the crime.


What is mistake?

Mistake of Fact:

Mistake of fact is a defense where it negates the existence of a mental state required to establish a material element of the crime. If the facts were as the D thought them to be, there would not have been a crime.

To negate a general intent crime, the mistake of fact must be reasonable. For a specific intent crime, it does not need to be reasonable.

Mistake of Law:

Ignorance of the law is not a defense.


What is consent?

Consent to the victim is not a defense to a crime except where it negates a specific element of the crime.


What is condonation?

Subsequent forgiveness is not a defense.