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Crim Law Flashcard Set 2


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Categories of Defenses
a) Failure of proof “defense” i) Ex: Mistake b) Offense Modifications i) Such as moving from murder to manslaughter. Not to convict of what we could. c) Justification i) Exonerates a defendant on what we otherwise would call “culpable conduct” but we don’t because of how the defendant acted. ex:self defense, etc. d) Excuse i) Condemns the act but provides a way out for the actor. We let you go because of who you are or because of your unique circumstances. Ex: Insanity
The two principal burdens of proof in criminal trials
i) The burden of production (what you need to go to trial)--(1) Prosecutor needs to prove all the elements of a crime (2) Defendant needs to produce evidence that self defense is a worthwhile theory to pursue. Note: To meet the burden of production, the defendant’s obligation is very minimal ii) The Burden of Persuasion -- (1) Involves trying to persuade the fact finder of the truth of the claim.
The burdens of proof in criminal trials
a) The two principal burdens of proof b) Procedure --The prosecutor has the burden on all elements of the crime, the defendant on all affirmative defensesand c) Justification--Justification: Triggering conditions permit a necessary and proportional response.
Self-Defense Standards
i) Perfect SD: honest, reasonable belief (even if not factually correct), ==> Acquittal (thus, one can be mistaken and still be justified!) ii) Imperfect SD: honest, but unreasonable belief ==> mitigation (manslaughter) iii) Implication: if no honest belief ==>cant sue self defense: GUILTY.
MPC 3.09: Self Defense
i) Self defense may be used if actor subjectively believes that his facts/situation support use of force, even if unreasonable [But if belief is unreasonable in that it is based on reckless or negligent error, SD wont’ protect against offenses based on recklessness or negligence, respectively (but it will protect actor from charges that require “higher” MR)] ii) Is the test for reasonableness subjective or objective? (Is this under the MPC?) [ A bit of in-between -- Look at if the person actually believes. If it was reasonably believed that would be objective. ]
The two important premises of self defense
i) Self defense is not available to one who provokes a conflict or is the aggressor in it (United States v. Peterson)
Aggressor⬝ is one who;
(a) Commits an “unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences” (b) Provokes the conflict (c) one who precipices the altercation (d) is not free from fault in the difficulty.
How can an Aggressor regain the right to Self-defense?
(i) Non-Deadly aggressors: 1. Majority Rule: if V of non-deadly force responds with disproportionate (ie deadly) force, original aggressor regains right to SD 2. Minority Rule: regaining is not automatic. If original aggressor can retreat, must do so. If no place of safe retreat, or if does retreat but is pursued, then regains SD. (ii) Deadly Aggressors 1. No right to SD unless wholly abandons deadly pursuit and fully communicates this fact to V.
MPC Approach defining "Aggressor" status
(i) Timing: replaces “imminency” requirement with “immediately necessary… on the present occasion.” 1. Gives the defender more freedom to act 1. Gives the defender more freedom to act (ii) “Aggressor” is one who “provokes” the use of force against herself “in the same encounter” for the “purpose of causing death or SBI.” 1. Has been interpreted to mean that one is not an aggressor if one initiates only non deadly force (iii) Must retreat if V knows that she can avoid the need to use DF with complete safety to herself (must see exceptions – e.g., need not retreat from own home)
Difference between MPC and Common Law [Aggressors]
(i) How they use the word “Aggressor” (ii) Common law does not differentiate the aggressor or not based on the force. (iii) Only subsection 3 has what it takes to be an aggressor (iv) MPC taken to mean that someone is not an aggressor if they initiate only non deadly force 1. Lose the right to self defense is to use deadly force.
General rule for defense with Deadly Force [Elements]
(1) In order to have the right to defend yourself with DF, you (a) Must have a reasonable basis to believe, AND (b) Must actually believe (c) That you are in imminent danger of death or SBI and that the use of DF is necessary to save yourself.
General theory of Self Defense--Use of Deadly Force (DF)
(1) In general, non aggressor is justified in using deadly force upon another if she reasonably believes that such force is necessary to protect herself from imminent use of unlawful deadly force by another.
Definition--What is Deadly Force?
(1) Force that is likely to cause death or SBI (2) Even if these consequences are not the person’s intent, or the actual result that occurs
Conditions for use of deadly force in self-defense [6 conditions]
(1) There must be a threat (actual or apparent) (2) The threat must e unlawful and immediate (3) The defendant must believe she is in imminent peril of death or SBI (4) The defender must believe that force is necessary to save herself (5) These beliefs must be both honest and reasonable (6) Concurrence of these elements.
Self Defense--Use of Deadly Force (DF) MINORITY RULE
Generally, one wishing to avail themselves of the defense of self-defenses has a duty to retreat (United States v. Peterson), (Minority/CL rule)
Self Defense--Use of Deadly Force (DF MAJORITY RULE/General Theory
In general, non aggressor is justified in using deadly force upon another if she reasonably believes that such force is necessary to protect herself from imminent use of unlawful deadly force by another.
The castle doctrine
(a) A man’s home is his castle and domain. (b) You are at the wall when you are in your own home (c) Only works if the person had the right to use self defense to begin with (d) Majority rule: you don’t have the obligation to go somewhere else. (is this true?)
Defense of Others
I can use force to protect third party (T) from unlawful force when.. i) MAJORITY view: I reasonably believe that third party (T) would be justified in using that force to protect herself. ii) MINORITY view: third Party (T) would in fact have been justified in using that force in self-defense (I cant be mistaken about T’s right).
Defense of Property—Basic Rule
a) Generally, can use nondeadly force (or DF, but defined in another card) to protect real or personal property which is in your possession from unlawful damage, trespass or dispossession b) Reasonable pursuit
What kind of force can be used for defense of property?
i) Must reasonably believe that force is necessary to prevent imminent and unlawful dispossession (1) Some states require defender to first ask other person to “desist” (unless futile or dangerous), or to seek law enforcement help (if time) ii) No more force than reasonably appears (1) Note: (1) DF not allowed (exception: protect entry into home); (2) if danger is also to self, then rule of self-defense apply to protect self once that threat is imminent. necessary (a) People v. Ceballos: Put spring gun trap in his garage/home and kids broke in and got shot in the head. An injury or killing by the use of a deadly mechanical device is not justified where the device injures in response to a non-violent burglary. Unthinking spring gun is not authorized. Something that has the ability to think, or activate at the push of a button, perhaps.
What does Reasonable Pursuit mean in defense of property?
i) When you can use force to recapture property (1) If it is real property. A home, land, etc, you can use force to reenter the land (2) If it is personal property, a purse, a book bag, something that you can take and carry away, and you want to capture it. (a) You can use force right before it as about to be taken away or (b) While you are in hot pursuit. (i) If I have your laptop and you run out of the door, you can use force to yank it back. If you are not in hot pursuit anymore you cannot take it back. The whole point is to avoid vigilante justice. We as a society give that duty to police officers.
Necessity—Basic Common Law (CL) Rule [Elements]
(1) There is an emergency threatening the imminent occurrence of a harm [“imminent significant evil”] (2) This harm cannot reasonably be avoided without committing a crime [strict necessity/no adequate alternative] (3) The emergency was not caused by the fault of the D [“clean hands”] AND (4) The harm avoided by committing the crime > than that caused by committing the crime [D chose the “lesser of two evils”] (a) (Harm that is reasonably forseeable at the time & whether D weighed the evils in the right ways I s a question for the legislature (through law—values), but if no applicable law showing how to weight them, then it’s a question for the fact finder)
Necessity—MPC 3.02 [how is it different from CL?]
(1) Broader than Common Law (CL) approach in three important ways: (a) No imminence of harm requirement; (b) If D reckless (R) or negligent (N) in creating the emergency, D loses defense if the offense charged requires R or N, but not if offense required a higher degree of MR; (c) All forms of necessity can qualify (no limits to emergencies created by natural forces, physical harm to persons or property, and the defense may be used in homicides).
Justifications: [list]
i) Self Defense ii) Defense of others iii) Defense of Property (and habitation) iv) Necessity (Hardest to use here)
Excuses: [list]
i) Duress ii) Intoxication iii) Insanity iv) Diminished capacity v) Infancy.
theoretical difference between justification and excuses
(1) Justification is about justified in breaking the law (2) Excuse, what you did was wrong but we are going to excuse you either because of who you are or because of the situation that you were in during that particular moment.
Differences between Duress vs. Necessity
a) Necessity is about facing two evils and making the “right” choice i) When the defense succeeds, nobody is held responsible for the underlying crime or defense. b) Duress is about having your free will so overcome that you make a particular “wrong” choice. i) If defense succeed, I am making the wrong choice. My free will is being circumvented. If the defense succeeds, I am off the hook for homicide
Common Law—Duress [elements]
i) Someone threatens D (or some third party) with death or SBI unless D commits a crime (1) The third party has to have a relation to D, a special one such as family, etc. ii) D reasonably believe that threat was genuine (ie would be carried out) (1) Ex: if they had carried it out. Had a history of violence. Reachareched you. Had a weapon on them. iii) Threat was present, imminent and impending at the time of the criminal act (mexican smuggler case: A defendant may assert the defense of duress when he acts under a threat of future harm only when the harm is likely to occur so quickly that the defendant cannot escape the situation. It was held that his situation was not duress. iv) No reasonable opportunity to escape that threat except by complying with the demand (1) Perspective: whether a reasonable person in the defendant’s position thought that they could escape v) D not at fault for being in coercive situation (1) Ex: you join terrorists and they want you to kill ppl now.
When is intoxication involuntary?
(a) Coerced intoxication (i) They threaten you if you don’t ingest this liquid, etc. (b) Pathological intoxication (i) When a drug or some other kind of subantce affects you more than it normally affects most people and you have no reason to expect this reaction. (c) Intoxicated by innocent mistake (i) Grab a Tylenol bottle but it ends up being LSD. (d) Unexpected intoxication from prescribed medication (i) I take a prescribed medication as directed and it unexpectedly makes me intoxicated. If I OD.
Involuntary Intoxication is generally a defense when
(a) Intox. Negates MR (failure-of-proof) OR (b) Intox results in “temporary insanity” (i) ==> Apply stat’s insanity test. Triggering event is the intoxication, rather than mental defect/disease. (note: defense is intoxication., not insanity)
When is intoxication voluntary?
(a) If the intoxication itself is self induced, then it is voluntary: (b) Almost always voluntary.
Involuntary Intoxication is generally a defense when:
(a) CL ==> Defense for SI crimes, if b/c of the vol intox D lacked the requisite SI (i) Note: n/a for GI (general intent) crimes (b) MPC  defense if vol intox negates any element of offense (i) But if MR for offense is R, D cant use defense by claiming he lacked awareness of risk b/c of the intoxication 1. This is because the fact that you are intoxicated is involuntary in and of itself.
MPC approach: Intoxication
i) Subsection 4 defines involuntary intoxication sas that which is not self induced or is pathological and essentially leads o temporary insanity. (1) When recklessness establishes an element of the offense, fi the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unareness is immaterial. (a) Voluntary intoxication is not an a defense but involuntary can be.
Framework for Analyzing intoxication cases
i) How did D become intoxicated (1) See if they ingested it voluntarily or involuntarily ii) In what way does D claim intoxication affect his/her behavior? (1) Ex: what if you had a crazy situation where you became involuntary. iii) With what type of offense was D charged? (1) The other thing you want to make clear is what type of defense the defendant was charged with. Is this a specific intent crime or general intent crime?
List of Specific Intent crimes
a) Solicitation b) Attempt c) Conspiracy d) Assault e) Larceny f) Burglary g) Forgery h) False pretenses i) Embezzlement j) First degree murder k) Robbery
Useful Framework for Insanity Defense
i) If D has a mental illness or disability. (1) Consider insanity defense (after other possible defenses that lead to regular acquittal) (a) Insanity defense possibility? (i) Analyze elements of the offense first 1. If elements can reasonably be met, then analyze other (no insanity ) defenses a. Then State: “if all other relevant defenses fail to acquit, D might be found NGRI.” State the insanity defense test in the relevant jurisdiction and apply tests to the tests of the case. (2) If insanity requirement appear difficult to meet, consider diminished capacity, in the alternative. (i) Diminished capacity – D suffers from a mental condition that does not fit definition of insanity. 1. Two types: a. Failure of Proof (diminished capacity) b. Excuse or “partial responsibility” (diminished capacity) Note: If you don’t know which one, do both
What is the catch statement for the Insanity Defense? "if all other relevant.."
“if all other relevant defenses fail to acquit, D might be found NGRI.” State the insanity defense test in the relevant jurisdiction and apply tests to the tests of the case.
Failure of Proof (diminished capacity) Defense
i. Mental disorder/defect prevented D from forming the required MR. ii. Modern CL: most states allowing this version of the defenses permit evidence only to rebut SI. iii. MPC: Allows evidence to rebut MR of any crime. iv. Q: what happens to defendant who is found NGRI? A: Sent to a place for rehab
b. Excuse or “partial responsibility” (diminished capacity) Defense
i. Modern CL: 1st degree ==> 2nd degree, or murder ==> manslaughter ii. MPC: murder ==> manslaughter if homicide is result of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.” [MPC 210.3 (1)(b)]
The case that stated the courts view of the diminished capacity defense
State v. Wilcox: Felony Murder Insane guy cant form specific intent for murder and burglary The diminished capacity defense, in which a defendant presents expert psychiatric testimony that relates to his alleged incapacity to form the requisite intent for his crimes, is an inconsistent, unpredictable, and disfavored doctrine.
The CL "Adult" threshold for infancy defense
(1) 14= adult under CL: 18 = adult under MPC (2) Apply “wrongfulness” standard of the relevant insanity test.
Rationales for insanity defense
i) Social norm that a civilized society should not punish those not really “responsible” for their actions. ii) Punishment is unlikely to prompt specific deterrence or general deterrence (of the sane). (1) We don’t think that the punishment for insane to be applicable to us. iii) Generally, for conduct to be criminal, must have appropriate “mens rea.” (1) Personal note: First recorded acquittal based on insanity dates to 1505 in England. (2) NOTE: mental illness is a psychological case. . Insanity is a legal term! You can be mentally ill and not insane. You cannot be insane and not mentally ill. There is only a very small mentally ill segment of society that commits crimes.
How does the Insanity defense work?
i) Law presumes sanity ii) Typically, D must tell Pros. Before trial that he will plead insanity. iii) Possible verdicts: G, NG, or NGRI. iv) NGRI verdict implies that all elements were proven, all other defenses were rejected, and that D was insane at time of the act. (1) NGRI, the amount of time that a person can spend in an institution can be longer or shorter than the amount of time in prison had they been found guilty of that offense.
Useful framework for understanding different insanity tests in definitions of Cognitive and Volitional
i) Cognitive – is insanity represented in terms of inability to know right from wrong? ii) Volitional – is insanity defined in terms for an inability to act according to right versus wrong?
M’Naghten Test: (“Right-Wrong” Test)
i) Defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he din t know that what he was doing was wrong ii) 2 questions if no, then pass test=insane (1) Did D know what he was doing when he committed the crime? (2) Did D know that this actions were wrong? iii) Criticisms of the test (1) What if you knew the difference but were unable to conform this? (2) It requires a complete inability to know right from wrong.
Irresistible Impulse test (Typically M’naghten + this test)
(1) Different Versions: (a) D was unable to prevent herself form committing the act despite knowledge of its wrongfulness (b) D’s will was so completely destroyed that her actions were beyond her control (c) D lost such power to choose between right and wrong, and to avoid doing the act in question, that her free agency was at the time destroyed.
Durham Test (“Product Test”)
(1) D’s unlawful act was the product of a mental disease or defect (2) 2 questions: (a) Did D have a mental disease or defect? (b) Was the disease/defect the reason for the act? (3) Criticized (a) Gave too much power to expert testimony and witnesses. (b) The jury should be making these determinations
Insanity test -- Model Penal Code--MPC (ALI Test)
i) As a result of a mental disease or defect D lacks substantial capacity either to (1) Appreciate the criminally [wrongfulness] of his conduct or (2) To conform his conduct to the requirements of law. ii) Comments on the MPC (1) This is a lower standard than the mcnaughten. They don’t have to show that they completely don’t know. (2) They have volitional thing. (3) Hugely effectively in changing the law across the state. (4) The difference is that we talk here about appreciating the criminality of something. There is a difference between appreciating and knowing
Insanity Defense reform Act [summary and affects]
i) “ it is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant as a result of a severe mental disease r or defect, was unable to appreciate the nature and quality for the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. (1) Affects of this act. (a) You have to define insanity narrowly (b) Make it very hard for someone to constrain insanity.
State v. Wilson: I’ve killed Evil Jack! Insanity case
Even if a defendant appreciates that his actions were illegal, if he believes, due to his mental disease or defect, that his actions were morally justified (society would condone his actions if it understood the situation like the defendant understands the situation) then he will not be criminally responsible for his actions. (1) Restatement (a) If you are diseased and that makes you believe that your act will be deemed acceptable to society, if society could only see things your way, when in fact society would not, then you need prong one of the test and are considered legally insane.
3 questions to ask to determine the Meanings of Wrongful
(1) In terms of the law? (2) In terms of Public/Societal morality? (3) In terms of D’s own moral conscience?
Infancy Defense – CL Rule
a) Under Age 7: D conclusively presumed incapable of criminal liability b) Ages 7 to 14: rebuttal presumption that D is incapable of knowing the wrongfulness of her actions i) Grey area. Look at the person to figure out if this person could know right from wrong. You look to a rebuttable presumption. ii) In Re Devon T: 13 yr old Kid with 20 zip lock bags of heroin. Infancy Defense? Rebuttable Presumption of incapacity due to infancy may be overcome with sufficient evidence of a defendant’s capacity to distinguish right from wrong. It is not mental age but biological age that matters! c) Over age 14: D treated as an adult.

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