Justifictions, excuses, and defenses Flashcards
justifications, excuses, and defenses (9)
** don’t need to memorize
A. Self-Defense
B. Defense of Others
C. Defense of Property
D. Necessity
E. Duress
F. Mistake or Ignorance of Fact
G. Mistake or Ignorance of Law
H. Consent
I. Entrapment
self-defense: Nondeadly force
a person may use non-deadly force where reasonably necessary to protect one’s self from imminent use of unlawful force.
For purposes of self-defense and defense of others, the defendant may not act out of a sense of preemption or retaliation.
There is no duty to retreat before using non-deadly force in self-defense.
Self-defense: Deadly force
a person may use deadly force when she:
(1) is confronted with imminent death or serious bodily harm
(2) was not the aggressor, and
(3) is confronted with unlawful force.
In the majority of jurisdictions, there is no duty to retreat before using deadly force in self-defense.
In a minority of jurisdictions (and under the M.P.C.), there is a duty to retreat before using deadly force in self-defense, unless the person using self-defense is in her own home.
If too much force is used, self-defense is not available and thus the person claiming the defense would be guilty of a crime (e.g., battery).
Defense of others
Defense of others applies if the accused reasonably believed that another person was being attacked (and thus that person could have used self-defense)
Under the majority view, the defense is not negated by the fact that the other person was not entitled to use self-defense, as long as accused reasonably believed so.
Defense of Property: Deadly force
A person may not use deadly force (e.g., spring guns) solely to defend property
Defense of Property: Non-deadly force
Reasonable non-deadly force may be used to:
regain possession of property if that property was wrongfully taken from a person’s immediate possession and the person demands return of the property before using such force (or such a demand is obviously futile) or
defend property in one’s possession if the need to use force reasonably appears imminent.
Defense of Property: Dwelling
A person may defend his or her home with deadly force:
(1) where the entry or attempted entry is violent or riotous and the person reasonably believes that deadly force is necessary to prevent personal attack on someone in the dwelling or
(2) to prevent someone from entering the dwelling for the purpose of committing a felony therein.
Necessity
A person may use the defense of necessity if she reasonably believes that her conduct was necessary to avoid some greater harm and she has no other lawful alternative
Necessity generally must result from pressure from physical forces of nature or health-based emergencies
Necessity is not a defense to homicide and it may not be used if the defendant was at fault in creating the necessity (e.g., taking a sail boat out despite hurricane warnings)
Duress
If a person (or a member of her family) is subject to physical duress (i.e., serious violence or threats of immediate serious violence), this excuses the crime
Duress may not be used as a defense for intentional homicide.
Duress may be used as a defense for felony-murder if it would serve as a defense to the underlying felony (e.g., robbery).
Duress may not be used as a defense where the defendant recklessly placed himself in a situation in which it was probable that he would be subject to duress (e.g., by joining a dangerous gang that is rumored to kill any member that defects).
Mistake or ignorance of fact: Reasonable mistake of fact
a reasonable mistake that negates an element of the crime is a defense to all crimes, except strict liability crimes
Mistake or ignorance of fact: Unreasonable mistake of fact
an unreasonable mistake that negates an element of the crime is a defense only to specific intent crimes
Mistake or ignorance of the law
Mistake or ignorance of law is rarely a defense; there are a few minor exceptions:
the law was not adequately published;
the accused was relying on a judicial opinion that was later overturned;
knowledge of the law is an “element” of the offense (which is quite rare).
As a general rule, advice of counsel is not a valid defense. However, if reliance on an attorney’s advice negates the necessary mental state (e.g., knowingly) of the crime, the defendant should be acquitted.
Consent
Consent is generally not a defense to a crime, unless it negates an element of the offense and then only as to
rape and kidnapping (in certain situations)
minor assaults and batteries (e.g., a legal boxing match), but not serious batteries or homicide
Some statutory crimes require the prosecution to prove non-consent.
Entrapment
The defendant must show that the intent to commit the crime originated with law enforcement and defendant was not predisposed to commit the crime prior to government contact
Entrapment defense allows the prosecution to introduce character evidence under FRE 405(b) (i.e., character as an element of the defense)
