1. what are the criminal defenses

    there are 14 primary categories
    • infancy
    • insanity
    • diminished capacity
    • intoxication ( tricky... careful)
    • ignorance/ mistake of fact
    • ignorance or mistake of law
    • necessity/justification
    • duress
    • entrapment
    • consent
    • defense of self/others/property
    • use of force to effectuate arrest
    • public authority
    • domestic authority/ special relationships
  2. insanity

    burden of proof
    • they were so impaired at the TIME OF THE CRIME by mental retardation or illness as to be "insane" within the meaning of the law. is used to show inability to engage in morally reprehensible behavior. meaning: not attacking the mens rea, rather showing inability to control oneself, or unable to understand what one was doing.
    • ( this will be a question of law and must meet legal standards)
    • compare: incompetent to stand trial is not a defense.proceeding will be postponed.
    • compare: diminished capacity: evidence of lacking mens rea.

    • sufficient impairment AT THE TIME OF THE CRIME. question of fact
    • did the impairment meet the legal standards ( these standards are not defined) question of law

  3. Insanity (fact)
    Mental illness or disease


    Involuntary intoxication

    • Manson)
  4. TESTS for insanity (as a standard) 5 tests
    • Cognitive and volition (awareness of reality
    • and/or control)


    Irresistible impulse


    Durham test (New Hampshire ONLY)

    Mens rea approach
  5. M’Naghten rule
    • Because of mental impairment: did not KNOW
    • nature and quality OR that it was wrong ( cognitive test)
  6. Loss Of control (irresistible Impulse test)
    Impulse overcomes his will to avoid the crime.
  7. MPC (lack of substantial capacity to control oneself)
    • Because of mental impairment: lacked substantial
    • ability to appreciate criminality OR conform it to the law.
  8. Revised insanity
    • California statute: only if incapable of knowing or
    • understanding the nature and quality of act AND distinguish right and wrong at
    • the time of the crime.
  9. Mens rea test
    Insanity can attack the Mens rea of a crime
  10. What is a crime?
    • CRIME - A crime is a wrongdoing such as a felony or misdemeanor. A
    • crime is an act or omission prohibited by law for the protection of the
    • public, the violationof which is prosecuted by the state in its own
    • name, and punishable by fine, incarceration, other restrictions upon
    • liberty, or some combination of these. MPC
    • §1.04

    • A crime is an offence against a public law.
    • It is confined to felony and is punishable by the forfeiture of a penalty.

    Felony. A felony is a serious crime punishable by at least one year in prison.

    • People convicted of felonies lose certain rights, such as the right
    • to vote or hold public office. During the term of sentence, the
    • convicted person may also be prohibited from making contracts,
    • marrying, suing or keeping certain professional licenses. Upon release
    • from prison, the convict may also be required to register with the
    • police.

    • Misdemeanor. A misdemeanor is a crime for which
    • the punishment is usually a fine and/or up to one year in a county
    • jail. Often a crime which is a misdemeanor for the first offense
    • becomes a felony for repeated offenses. All crimes that are not
    • felonies are misdemeanors.

    Crimes are defined and punished by statutes and by the common law.

    • Most common law offences are well known that all immoral acts which
    • tend to the prejudice of the community are punishable by courts of
    • justice.

    Crimes are 'mala in se,' or bad in themselves, and these include all offences against the moral law; inherently dangerous.

    • or they are 'mala prohibita,' bad because prohibited, as being
    • against sound policy which, unless prohibited, would be innocent or
    • indifferent.
  11. liability of
    associations ( non corporations)
    • general
    • rule: no liabilityexception:
    • liability imposed by law ( eg. lisense plates of vehicles)Exception:
    • legislative intent to make liableDISTINGUISH: entity
    • theory:can sue and be sued under their own name.thus authority to hold
    • liability equal to corporations.
  12. infancy
    • common law: incapable. Under 7, not capable. 7-14,
    • presumed incapable, but can be rebutted, prosecution can show evidence of
    • capability EXCEPTION:male commiting rape, not capable, irrefutable. 14
    • and older:no presumption of incapability.MODERN LAW:california:under
    • 14 presumed incapable, but all ages are rebuttable.
  13. when is age of
    child determined?
    • ·
    • age at the time of the crime, chronolical age, not
    • mental age.
  14. Corporate Crim
    Are corporations liable for minor or major offenses?
    • minor:yes, (esp strict liability) IF WITHIN COURSE OF
    • EMPLOYMENT. intent and knowledge ( if applicable) of employee make corporation
    • liable
    • major:conflicted
    • respondent superior §303:must have requisite intent, in the course of employment,
    • even if against company policy and/or express instructions.
    • MPC §304:must be authorized, performed or recklessly tolerated by board of
    • directors ) or other such high authority)
    • compromise approach:§305 corporation must give perpetrator " enough
    • atuhority and responsibility". does not require approval or knowledge,
    • just gave power to do so.

    • MPC:crimes other then strict liability, can argue high authority exercised due
    • diligence to averting such crimes
  15. liability of
    associations ( non corporations)
    • general rule: no
    • liabilityexception:
    • liability imposed by law ( eg. lisense plates of vehicles)Exception:
    • legislative intent to make liableDISTINGUISH: entity
    • theory:can sue and be sued under their own name.thus authority to hold
    • liability equal to corporations
  16. proof of insanity
    presumed sane defendants have to prove insane ( since Hickley aquittal)

    • USC: defendant has to show clear and convincing evidence
    • CPC( CAlifornia) Defendant must prove by a ponderance of the evidence
  17. jury instructions for insanity
    move for aquittal
    • split on whether or not jury should be instructed on procedural consequesces of an aquittal.
    • federal statutes provide no instructions necessary. defendants for these instructions argue that juries mistakenly believe an aquitted insane person is allowed back into the community.
  18. procedure after aquittal for insanity ( NGRI) not guilty reason insanity
    • the verdict is " not guilty by reason of insanity" not: innocent or guilty.
    • federal statutes provide for immediate hospitilization. most jurisdictions follow this. after 40 days, there is a hearing. if D is proven no longer a threat, then he may be freed. if not, he can only be held for the reason that he is dangerous for the SAME reasons he was aquitted.
    • no constitutional reason to release at the maximum sentencing time if conviction had indeed ocurred.
  19. Guilty but mentally ill alternatives
    • michigan created this situation.
    • requirements: not legally insane but is mentally ill at the time of crime
    • sentenced under regular sentencing, but treatment is given as indicated, and if probation, then out patient treatment for may be required as part of probation.
  20. diminished capacity
    • mental illness which is not legally insane, but can be used to establish innability to have required mens rea.also called Wells-Gorshen rule.
    • modification of rule; not a defense, no longer allows for the defense that no mental state created, but can show the right state may not have been created. Also; lack of controll because of mental illness is not proof that the required mental state is not indeed reached.
  21. diminished capacity- majority approach
    most reject based on the manipulation of the mens rea is being used to sidestep criminal testimony which proves diminished capacity is unreliable.also juries are not equiped to interpret this information.

    thus: where excepted, will be limited to specific intent crimes.

    MPC:admits mental illness evidence where ever relevant. no specific intent limit.

    *advanced notice of intent to use this in court not need to be given
  22. intoxication
    • depends on if voluntary or involuntary/ involuntary is a complete defense.
    • includes drugs and medecines
    • def: D did not know was intoxicating or under immediate and direct duress.( must be strong duress)
  23. voluntary intoxicaton
    • Common Law:has no mitigating defensive significance
    • Majority rule:can negate only specific intent crimes.
    • burden of proof principle, be aquitted if raises doubt as to whether had required mens rea, however some jurisdictions treat as a voluntary defense, thus putting burden on D

    • CAlifornia:negates mens rea, but no the capacity, but can be defensive to whether or not D actually DID form intent.
    • MPC:negates mental state higher then recklessness

    APPLICATION:any plan or action requiring physical strength might not negate the culpability.
  24. crimes requiring intoxication
    • public drunkeness, driving under the influence
    • possible to show that if intoxication is proven involuntary, then might defend against this
  25. ignorance of fact/ mistake of fact
    not a defense, but might be used to show lack of mens rea

    • MPC: requires aquittal if negates mens rea/ does not work if person is guilty under his assumeb information. ( if crime is still a crime even with mistake)
    • burden of proof: Prosecution must prove mens rea, therefore if D raises mistake which shows reasonable doubt, the aquittal.

    GENERALLY: mistake of fact needs to be reasonble. by reasonable person test. with specific intent, many courts do not need to show reasonability for mistake for the specific intent crimes.

    STRICT LIABILITY: the offense does not require a mens rea, but maybe it can be used as a defense ( not to negate mens rea, but as a defense)
  26. mistake of law
    ignorance is passive unawareness mistake is having gone to the trouble of knowing something, but erroneously came to the wrong conclusion

    • two situations:
    • 1. mistake negates mens rea. reasonableness NOT required. cases of adverse posession ( eg. watch/newspaper example)
    • 2. mistake about law, but had a mens rea. RARE ex. intendd to do crime, but thought it permissable. has the mens rea, bub no intent to break the law.( not blameworthy)two elements: ACTUALLY MADE AND OBJECTIVELY REASONABLE judicial decision: can escape conviction if conduct not criminal. reliance on legal advice not permissable.
    • misleading bu public officials bars the criminal offense.( protesting)
  27. necessity or justification
    • reasonable belief that will prevent greater harm or evil.
    • MPC: would allow a pharmasist ro prescribe a drug to prevent suffering in emergency.
    • pressure to commit created by physical forces of nature. DURESS is forces created by other persons.( separte defences)
    • ELEMENTS: reasonable person, greater harm threatened ( immenant), no alternatives,
    • MPC: defense can not be used if reckless or negligence created the situation( if appropriate mens rea for crime)
    • no defense to murders, possibly not felony-murder( a non intentional crime)
    • mat be used to negate a premeditation, may reduce to manslaughter.noe applicable if person created the duress circumstances by reckless
    • common law: wife not responsibel for duress of husband. Modern statute: nope, husband must be present and applu to the general duress standards.
  28. duress
    • threat made by another person to use force against the defendant.
    • Objective reasonable standard ( outside)
    • must actually be sufficient threat
    • threat has to be for death or serious injury
    • threat can be for family and strangers as well.
    • must be immediate
    • submission muse be reasonable.
    • MPC: threat against any persons, need not be immediate, but must be reasonable and is subjected to the firmness person standard.
    • LIMITATIONS: does not work on murders, unclear on felony-murder which is a non intentional killing, can be used to negate premeditation and get charges reduced to manslaughter.
    • can not subject himself to duress by way of recklessness when forseeable.
    • husband-wife= common law: yes a defense, modern rule, no, unless spouse is present and follows the regular duress aplication
  29. entrapment
    • person was entrapped by law enforcement or a person acting as agent or hired by one ( informant, paid undercover agents)
    • supreme courts refuse to make this a constitutional due process.
    • can not be applied to serious crimes. MPC: not to crimes involving serious bodily harm ( rape , murder)
    • LIMITS: can not deny guilt.
    • federal courts say ok not to admit guilt
    • TRADITIONAL VIEW: subjective view ( personal) predisposition important burden of proof: on the D to show entrapment, then P proves beyond reasonable doubt D was predisposed to this behavior.
    • MODERN VIEW: objective standard ( outside) .. so that we can minimize police reasonable person standard

    MPC; follows modern view burden of proof for objective, determined by judge as a matter of law.predisposition not relevant
  30. consent
    • is a defense if it negates some element of a crime or if for minor assault or battery. consent must be legally effective.
    • may work for rape ( to negate actus rea)
    • or like sporting events. widespread consent, or where there is low risk of bidily injury.and/or a beneficial risk ( surgery)
    • ex. sadomasichism lets no consent defense because of the extent of injuries
    • MPC: harm is not serious, reasonable forseeable hazard.
    • LEGAL EFFECT: must be voluntairly given, must be of legal capacity,free of fraud and mistake
    • in CA, if victim is placated to satisfaction, in CA might be reason to drop case.

    if the victim was negligent or engaged with illegal activities at the time might effect a case of driminal homicide, but otherwise, crimes are againt the public and the unworthyness of a person does not countermand the public need.
  31. self-defense
    • reasonable believed actions were necessary to defend herself against an appearant threat of UNLAWFUL and IMMEDIATE violence of another
    • NON DEADLY: honest and reasonable belief
    • threatened with physical harm ( reasonable belief)
    • immenancy
    • unlawfullness... raises issues to unlawful arest.
    • reasonable belief that required defensive force used

    • DEADLY FORCE USED:( or serious injury... will be called deadly force, baseball bat is deadly force)
    • additional requirements: force used to create death or serious bodily harm
    • reasonable belief of death or serious bodily injury
    • ( if the threat is nondeadly, and only deadly force might be used, then D needs to ensue the nondeadly force, RAPE??)
    • *** if she realized or if exercising reasonable care, should have realized, nondeadly force would have sufficed, then no defense.

    • DUTY TO RETREAT::: common law: ( minority rule) has to retreat, but no duty and deadly force ok if retreat would increase the attack of deadly force by doing so.
    • EXCEPT: attack in the home reason, person is in safety already. ( applies to attacks in businesses as well)
    • MAJORITY: retreat not absolutely necessary. however opportunity to retreat might negate the necesity to use deadly force..

    • BATTERED WOMAN: imminency of threat is an issue and leaving the relationship is an option.
    • BATTERED WOMANS SYNDROME: expert witness testimony minority rule: maybe special instructions given to conside the surrounding elements of the D's situation, thus to possibly allow for this defense.

    LIMIT: agressors can not use self defense... arming onesself is agression( issue of legality of the act, victim is using lawful force)

    • TWO SITUATIONS: where the agressor can use deadly force1. when non deadly agressor is met with deadly force.
    • 2. withdrawl by agressor.
    • persons who use deadly force when not allowed, or force not equal to the force used, or unreasonable belief can be charged of manslaughter, not murder
  32. unlawful arrest
    • traditional view: allowed to resist
    • modern rule: some jurisdictions prehibi the use of force to resist unlawful arrest
  33. defense of others
    • to defend against unlawful, immediate violence of another.
    • strangers? split jurisdictions
    • Modern View: no special realtionship needed.
    • MPC: the basis for requiring a special relationship is bogus, that people will unwisely and unessairly attack people erroneously if allowed.
    • courts differ, but victim must have the right to defend themdelfes.
    • "alter ego" means, rescuer does so at their own peril. and stands in the place of the victim. and laws governing this will prevail.meaning: can not rely on reasonable but unmistakable belief.
    • MPC and Majority rule: reasonably appeared
    • LIMITATION: force must be reasonable.
    • DISTINGUISH: force used to prohibit crime. if D reasonable believes V is victim of a criminal offense, can offer aid as to terminate the offense.
  34. protection of property
    • can use for defence of assaultive crimes to defend property from wrongful interfearence
    • deadly force not allowed, even if there is no other way.
    • perhaps where D is non deadly protecting his property and then a deadly threar arrises, then right ot use deadly force.
    • MPC force is not reasonable unless a prior request to desist from interfearing with the property.( unless proven useless dangerous or unreasonable) use of nondeadly force for property in the posession of the D, or in the posession of another whos protection the defendant acts.
    • modern rule: property be in the legal posession of the person using the force.
    • there is no general right to defend property in the posession of another.
    • USE OF FORCE TO REGAIN. at or near the time. CAN not use force to regain property illegally taken or intruded uopn.
    • exception of above: hot persuit
    • MPC: show hot persuit, or an exceptional hardship to reenter property.

    • Mechanical devices; not for property, but in defense of human life
    • MPC: machanical devices never permissable
  35. protection of dwelling
    • in own dwelling, maybe somewhat greater right to use force for ones dwelling.
    • early: if neasonably necessary and warning had been given, then permissable.duty to retreat might be revoked
    • modern rule: limited right / reasonable belief trespassor intended to commit a felony or to harm someone.
    • MPC: belief to commit a felony AND used or threatened force OR using nondeadly force would expose someone in the dwelling to substantial danger of bodily harm.
    • intruder inside of dwelling: no longer able to use ... but can be used in defense of self.
    • CALIFORNIA: D is presumed to had the reasonable fear of emminent death if deadl force was used/ the other unlawfully entered the dewlling ( forced) and defendant knew of the forced entry or had reason to believe forced entry had occurred.
  36. effectuate arrest
    • citizens and police officers have right to use force to make an arrest and a defense againt criminal prosecution
    • POLICE OFFICERS: have broader defenses, but more limitations of deadly force. can use deadly force if and only if reasonably believes a felony has been committed.MODERN POLICE RULE: deadly force limited to dangerous felonies, involving harm of others.
    • MPC: follows modern view crime for which a person is being arrested must involve threat or use of deadly forceor if risk of delay created HIGH risk of deadly or serious injury.

    • 4th ammendment: use of deadly force when no reason to believe there was a threat to the officers. can be a call for dmaages.
    • reasonable appearance: allowable to use force in an arrest, if necessary, suspect is guilty of a felony, and if felony was a dangerous one, even if wrong. reasonable appearances, not factual outcome, control

    • felony in fact has to be comitted, person killed has to be the one who committed the felony... but private citizen acts in his own peril.
    • MPC: unless he believes he is assisting a police officer, otherwise no right. however , if no death, and facts of felony true, and reasonable force necessary, then often leniency.
    • to prevent escape: force may be used, if force could have been used in the first place.
  37. crime prevention
    • a D uses assaultive force to stop a crime
    • defense might be allowed,
    • COMMON LAW: non deadly force to prevent a crime. deadly force only if a felony
    • modern view: deadly force limited to dangerous felonies.
    • MPC: nondeadly_ stop crimes of bodily injury, damage or loss of property. Deadly force only if D believes person would cause death or serious bodily harm and if there was no risk to any third person.
  38. public authority
    • must be reasonable and not exceed what is necessary for the proper performance of duties.
    • example is for a soldier.
    • reasonable belief acted under valid authority in cases of contrary opinion.
  39. domestic authority
    • with special legal authority use of reasonable nondeadly force in performance of their duties .
    • Parents: may ise nondeadly force to discipline their children, and thus promote welfare.
    • schoolteachers: have right to use reasonable and necessary nondeadly force to maintain school discipline to promote childs education right can be applied with or without the approval of theri parents, even if takes place off school grounds.

    also, captains, pilots, etc.
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