DEFENSE TUTORIAL
Affirmative Defenses

Justifications
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Self-Defense
Defense of Others
Necessity

Excuses
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Duress
Insanity
Diminished Capacity
Intoxication
Entrapment
SELF-DEFENSE
 Honest
and Reasonable Fear
 Death or Serious Bodily Harm
 Imminent Threat
 No excessive force
 Duty to retreat
 Not initial aggressor
“Honest and Reasonable Fear”

CL: Reasonable person
in defendant’s situation
(semi-objective)



Physical attributes
D’s prior experiences
Circumstances of attack
(movements, comments
and past of assailant)

MPC: Defendant
believed (subj.)

Note: “Imperfect selfdefense” (Honest, but
unreasonable belief)
“Death or Serious Bodily Harm”
 CL:
Strict standard
 MPC:
“or threat of serious felonies, like
kidnapping, rape and robbery.”
Imminent vs. Inevitable

CL: Strict time
requirement

Modern CL:
Reasonably believe
imminent

MPC: Subjective
approach
No Excessive Force

Lethal force only
when confronted with
lethal force
Duty to Retreat

Only when planning
to use lethal force

May stand ground
when defending with
non-lethal force

No duty to retreat in
own home (“Castle
Rule”)
Not Initial Aggressor

Initial Aggressor vs.
Instigator

Who escalates to
violence?
Defense of Others
 2 Approaches


Stand in other person’s shoes
Reasonable person would have believed that
right of self-defense
Question #1 - Poe

Honest and
Reasonable Fear?
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
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CL approach
MPC approach
Death or Serious
Bodily Harm?
Imminent Threat?
No excessive force?
Duty to retreat?
Not initial aggressor?
Question #1 - Jane

Honest and
Reasonable Fear?
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
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
CL approach
MPC approach
Death or Serious
Bodily Harm?
Imminent Threat?
No excessive force?
Duty to retreat?
Not initial aggressor?
Question #1 - Brock
 Defense
of Others

Stand in shoes approach

Reasonable person approach
NECESSITY



Choice of evils
No apparent legal
alternatives
Imminent threat


Chose lesser harm





CL or relaxed
Lives > Property
CL: Not homicides
Min.: More lives>fewer
lives
Did not bring upon self
No contrary legislative
intent
QUESTION #2 - George



Choice of evils
No apparent legal
alternatives
Imminent threat


Chose lesser harm





CL or relaxed
Lives > Property
CL: Not homicides
Min.: More lives>fewer
lives
Did not bring upon self
No contrary legislative
intent
QUESTION #2 – Rocket Man



Choice of evils
No apparent legal
alternatives
Imminent threat


Chose lesser harm





CL or relaxed
Lives > Property
CL: Not homicides
Min.: More lives>fewer
lives
Did not bring upon self
No contrary legislative
intent
Duress
Common Law

Threat of death or SBH
 To defendant or close
family member
 Imminent
 Such fear that ordinary
person would yield
 Limitation for homicide

Note: Imperfect duress =
Manslaughter
MPC

Sliding scale

No limitation for
homicides
MENTAL DEFENSES

Competency [Ability to
stand trial] (Dusky)



Insanity


Understand proceedings
Able to participate
Full defense
Diminished Capacity

Partial defense
Insanity



McNaghten
D presumed sane
At time of crime
Disease or defect


D does not know nature &
quality of acts, OR
D does not know acts are
“wrong”
MPC
 D presumed sane
 At time of Crime
 Disease or Defect
 Lacks substantial
capacity to:


CL Additions


Deific Decree
Irresistible impulse
Appreciate wrongfulness,
OR
Control behavior
Mental Disease or Defect

Legal Concept
 Look at factors
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Verifiable symptoms
Medical history
Number of cases
Easily faked?
Stigma?
Brought upon self?
Other policy
concerns?
Diminished Capacity

3 approaches

Brawner
• Reduce specific intent
crime to general intent
crime

Wilcox
• No defense

MPC
• Can use to prove no
mens rea for any crime
INTOXICATION
 Involuntary



(Full defense)
D unaware ingesting drug or alcohol
D forced to consume drug or alcohol
Pathological effect
 Voluntary
(Partial defense)
Involuntary Intoxication

Full defense

Defect or disease 
insanity defense
Voluntary Intoxication

Reduces Mens Rea


Specific Intent 
General Intent Crime
Note: MPC approach
same
Entrapment
Fed: “Predisposition”
• Subjective approach
• Exception: Motion to
dismiss for outrageous
govt. misconduct
Cal: Govt. conduct likely to
induce law-abiding
person to commit crime?
• Objective approach
MPC: Obj. approach to
judge
QUESTION #3

Affirmative Defenses




Entrapment
Insanity
Diminished capacity
Intoxication