CRIMINAL LAW
I. DEFENSES
A.
Responsibility
1. Insanity
a. If the defendant is insane at the time of his criminal act, no criminal liability will be
imposed. Four tests for insanity are followed in various jurisdictions.
(1) At common law, originally, defendant had to show that they were:
(a) When discussing insanity, there are two types of defects considered:
1)
2)
Cognitive defects are things which disable your cognition, your ability to
understand what is going on around you.
Volitional defects are things which disable your ability to:
(2) The M’Naghten test focuses on the defendant’s reasoning abilities. Under this test,
a defendant is relieved of criminal responsibility upon proof that at the time of
commission of the act, he was laboring under such a defect of reason from a disease
of the mind as not to know the nature and quality of the act he was doing or, if he did
know it, not to know that what he was doing was wrong.
EXAMPLE:
Defendant, because of his severe schizophrenia, actually believes his wife is a
television set, and that the pistol in his hand is a remote control. Tired of listening to
the evening news, he points the remote at the television and pulls the trigger to
change the channel. If his mental disease or defect makes him unable to understand
the nature and quality of his action, he will be excused by reason of insanity.
(3) Under the irresistible impulse test, a defendant will be found not guilty where:
b.
(4) Under the Durham (or New Hampshire) Rule, also known as the product rule, a
defendant is not criminally responsible if his unlawful act was the product of mental
disease or defect (meaning it would not have been committed “but for” the defect or
disease).
(5) Under the Model Penal Code Test ("MPC") (or Substantial Capacity), a person is
not responsible for criminal conduct if, at the time of such conduct, as a result of
mental disease or defect, he lacked substantial capacity to appreciate the criminality
(wrongfulness) of his conduct or to conform his conduct to the requirements of law.
(a) It is typically easier to establish MPC insanity because it does not require the
total or absolute loss of cognitive ability or volition, only that the defendant
lacked substantial capacity in these areas.
(b) It also combines a cognitive component (not knowing) with a volitional
component (not controlling) and allows a verdict of insanity for either one.
Procedural Issues
(1) A defendant is presumed sane until such time as he goes forward by raising
evidence as to his sanity.
(a) The defendant always carries:
(b) However, the burden of persuasion:
2.
3.
(2) A not guilty plea at arraignment does not waive the right to raise the insanity defense
at a later time.
Competency
a. Competency to stand trial is very different from a mental incapacity.
b. Incompetency typically refers to a doctrine that prevents defendants from being tried,
convicted, or punished unless they have the sufficient present ability to consult counsel
with a reasonable and rational understanding of the proceedings.
(1) If a defendant is found incompetent, he can later be tried and punished if competency
is restored.
Diminished Capacity
a. Some jurisdictions allow the defense of diminished capacity, which is short of insanity, to
prove that, as a result of a mental defect:
(1) Diminished capacity is a:
(2) There are two types of diminished capacity:
(a) The elemental theory is used to:
(b) The other, more limited version is used:
4.
Intoxication
a. Voluntary or involuntary intoxication (whether brought about by alcohol or by narcotic
drugs) is a defense to a crime when it negates the existence of an element of the crime.
(1) Involuntary intoxication is where the defendant, as a result of the involuntary
ingestion of an intoxicant or the unanticipated response to a voluntarily ingested
intoxicant, the defendant is in effect:
(a) If the defendant can prove this:
(2) Voluntary intoxication is a defense raised as a result of the defendant's voluntary
ingestion of intoxication. It is only effective:
5.
6.
B.
Infancy
a. At common law, a complete defense due to incapacity existed for children under:
b.
Children over age 14 were:
c.
In between seven and 14 years of age, there was:
Duress
a. The defense of duress justifies criminal conduct where the defendant reasonably believes
that the only way to avoid unlawful threats of great bodily harm or imminent death is to
engage in unlawful conduct. For duress, the threat comes from human forces rather than
from forces of nature.
Justification
1. Where an act is justified, no crime has been committed, notwithstanding what might otherwise
2.
be a criminal result.
Self-Defense
a. There are four elements to a claim of self-defense. It arises where a person:
(1) honestly and reasonably responds;
(2) to an imminent threat;
(3) with proportionate force;
(4) because there is no alternative.
b. Deadly force is that which threatens:
c.
d.
e.
f.
(1) Deadly force can only be used in self-defense in response to an attack that threatens
death or great bodily injury.
(2) The defendant could not have been responsible for creating the threat or causing the
problem.
An imminent threat means:
(1) The defendant must have been left with no other option; if the threat was not
imminent, the defendant generally has some alternative available, such as calling for
help.
At common law, there was a duty for the defendant to retreat. This means the defendant
had to try to get away unless the defendant could no longer do so safely.
(1) Most jurisdictions have abolished this rule. Even where it is still required, there is no
duty to retreat from:
An aggressor is one who strikes the first blow or commits a crime against the victim. The
clean hands doctrine requires the person claiming self-defense to not have been the
initial aggressor.
(1) The aggressor can regain the right of self-defense in either of two ways:
(a) upon complete withdrawal perceived by the other party; or
(b) escalation of force by the victim of the initial aggression.
Reasonable force is that amount of force that is necessary to avoid the threatened harm.
In other words, if non-deadly force would stop a deadly attack, responding with deadly
force is not reasonable.
(1) It is never reasonable to use deadly force to protect:
3.
Defense of a Third Person
a. Generally, one is justified in using force to defend a third person to the same extent that
that person would be justified in using force to defend themselves.
b. At common law, there was a very strict requirement called the alter ego rule. If the
person you are defending had no right to defend himself, you could not defend him. This
was because you "stepped into" the shoes of the person you are defending, and gained
no greater rights to claim justification.
(1) The modern rule, the reasonableness approach, states that as long as you make a
reasonable judgment that the person you are defending had a right to defend himself:
4.
Procedural Issues for Self-Defense and Defense of Others
a. A jury is going to determine whether the defendant honestly believed he needed to
defend himself, and if the defendant:
(1) If the jury finds that defendant could not have believed the need for self-defense,
there is no defense.
(2) If the jury believes that defendant honestly believed he needed to do so, and should
have believed it:
(3) If the jury did not find that the defendant should have believed the necessity, at
common law:
(4) Most jurisdictions now permit imperfect self-defense, which arises where the jury says
that the defendant honestly believes he needed to use self-defense, but should not
have believed it. In this situation, this will result in:
5.
Necessity
a. Reasonable force is justified to avoid imminent injury resulting from natural (non-human)
forces or where an individual reasonably believes that his criminal conduct is necessary
to avoid a “greater harm” that would result from compliance with the law (e.g., A kills B to
save C and D).
b. Neither necessity nor defense has typically been valid as:
(1) However, it will apply in one situation:
c.
There is no defense of necessity or duress where the defendant is at fault in creating the
perilous situation.
EXAMPLE:
If the pilot failed to ensure proper maintenance of his plane, he may be criminally liable for
harm to others in a crash landing.
C.
Entrapment
1. The defense of entrapment exists where the criminal act is the product of creative activity
originating with law enforcement officials and the defendant is in no way predisposed to
commit the crime.
a. The defense of entrapment very rarely succeeds. This is because the evidentiary
response by the prosecutor is to show that:
(1) This is typically shown by: