Flashcards
Defenses
Cards in this deck (13)
- 1Self Defense (CL)1.Fear of physical harm to self or another
2.Reasonableness of fear
3.Imminence of Danger
4.Proportionality of Force Used
5.Clean Hands
6.Duty to Retreat - 2Self Defense (Mpc)MPC §3.04
1. Subjective to actor- did this particular defendant have an honest belief that force was about to be used
2. Use of force is justifiable when victim believes that such force is immediately necessary to protect himself against the use of unlawful force by another person on the present occasion
3. Limitation 2(a)
a. Defendant cannot use force to resist an arrest he knows is being made by a police officer even if the arrest is unlawful
4. Limitation 2(b)
a. Defendant cannot use force if he can avoid the need to use such force with complete safety by taking alternative steps
5. MPC’s approach would allow victim to use self-defense if she believed that she could not wait, that force was immediately necessary - 3Necessity (common law)Traditional Necessity
1) Actual Awareness of Harm/Evil – faced with choice of evils/harm
2) No Other Options – No lawful alternatives to avoid harm/evil
3) Immediate – Harm threatened is immediate
4) Lesser Harm Chosen – chose the lesser harm of the options
5) Not Created – did not create the necessity (Absolute Defense Prohibition if Created)
6) No Statutes – No legislation to the contrary (not allowing action) - 4Necessity (Mpc)M.P.C. § 3.04 Necessity – (Virtually No Jurisdictional Adoption)
1) Belief of Necessity – Believes necessary to avoid harm to self or others
2) Lesser Harm Chosen – Harm avoided is greater than harm done
3) No Statutes – No legislative purpose to exclude
4) Not Created (Not Negligent/Reckless) – Prosecute if created by ’s negligence/recklessness - 5Duress (CL)Federal test factors:
1. Immediate threat
2. Serious bodily injury associated with threat
3. Well grounded fear
4. No opportunity to escape
5. Prompt surrender to authorities once safety is attained - 6Duress (Mpc)MPC §2.09
1. Requires coercion that would overcome a person of reasonable firmness
2. May be used as a defense for any crime as ling as the threat was such that a person of reasonable firmness would not have been able to resist it - 7Insanity-Mpc test vs Mcnaughten test
-under MPC we require the defendant, not have been able to appreciate the wrongful ness of her conduct in order to use the insanity defense
-under mcnaughten you need knowledge, under mpc you need "appreciate"
▪ This is a higher standard appreciate then knowingly
▪ Was too lieanate - 8Intoxicationneed to find
- 9Entrapment (CL)i. Common law/federal approach
1. Looks subjectively on defendant’s mental state- if they were predisposed to commit the crime proposed or would have otherwise been innocent
2. Federal test– whether the df. was predisposed to commit the crime and responded to an opportunity provided by the government or was otherwise innocent and the government instigated the commission of the crime. Subjective test based on df.’s mental state. - 10Entrapment (mpc)MPC §2.13(1)
1. MPC objective test– Focuses on the gov’t, not the df. Available where the government has acted in a way likely to instigate or create an offense by “employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.”
2. Focuses on the government’s actions
3. Utilizes both objective and subjective aspects
4. Two ways that a public law enforcement official can perpetrate an entrapment
a. Making knowingly false representations for purpose of inducing belief that conduct is not prohibited by law (objective test)
b. Employing methods of persuasion that create a substantial risk that such an offense would be committed by persons who would not otherwise commit it (subjective test) - 11Diminished capacityi. Mental defect that is insufficiently serious to support insanity defense
ii. Impaired mental condition- less than insanity
1. Caused by intoxication, trauma, or disease and that prevents a person from having the mental state necessary to be held responsible for a crime
2. Damage caused by long-term addiction may assist an insanity or diminished capacity defense. It may support a mistake of fact claim, or if extreme addiction may raise questions about if defendant committed a voluntary act
iii. Makes an individual incapable of forming a particular mens rea element, or may negate or raise doubt about a mens rea element - 12Mistake of law- common law
- i. Common Law
1. Ignorance of law is no excuse
a. BUT, if knowledge of the law is an element of the offense,
than an honest belief that what you are doing is lawful acquits
on a failure of proof theory
- Mpc
- 1. Allows defense where
a. Mistaken belief is based on non-publication of the law
b. Conduct based on an erroneous official statement of the law by
a government authority entrusted with the power to issue official
interpretations - 13Mistake of fact- common law
- i. Common Law
1. Negates mens rea
a. Strict liability crimes have no mistake of facts defense
2. For specific intent crimes- defendant is not guilty if mistake
of fact eliminates specific intent
3. For general intent crimes- defendant is not guilty if mistake
is reasonable and good faith
- MPC
- i. MPC § 2.04(1)-(2)
1. Is defense if it negates mental state required to establish
any element of offense regardless of whether it is general or
specific intent
- • Under the mpc it is a defense to spefici and general
intent crimes, and regardless of weather it would be under
the common law
• No reasonable or unreasonable under mpc
- Same as law
- negates if there is Men Rea
- error statement
- unpublished or uncle that violates due process
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- Flashcards on Defenses , created by Ben Mehr on 27/04/2015.
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- Ben Mehr
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