crim law - defenses.txt

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crim law - defenses.txt
2013-07-16 15:04:43
ca bar crim law defenses

ca bar crim law defenses
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  1. Self-Defense
    Defendant may use deadly force to protect against an imminent deadly attack if reasonable and necessary.
  2. Self-defense: must you retreat?
    • 1) Generally, no duty to retreat before using deadly force
    • 2) If Defendant is the aggressor, and safe retreat is available, then he must retreat
    • 3) Minority rule: D must retreat before using deadly force if safe retreat is available, unless:
    • ------a) in his home
    • ------b) a police officer
    • ------c) victim of a violent felony
  3. If Defendant is initial aggressor, when can Defendant assert self-defense?
    • Defendant cannot assert self-defense as the initial aggressor, UNLESS:
    • 1) The defedant, as the initial aggressor, withdraws
    • 2) the defendant initially used non-deadly force, and the attacker is now using deadly force
    • 3) If safe retreat is available, the initial aggressor must retreat before using deadly force
  4. Defense of others
    • Defendant can use deadly force if reasonable and necessary to defend another.
    • 1) majority rule: defendant may claim defense of others if victim reasonably appears to have the right to use deadly force himself
    • 2) minority rule: defendant steps into the shoes of the person defended
  5. Defense of Property
    • 1) of dwelling: nondeadly force may be used against an unlawful entry.
    • ------deadly force may be used only if it becomes self-defense, or to prevent a felony
    • 2) of other property: deadly force is not an option
  6. Insanity
    • 1) M'Naughten test (cognitive)
    • ------a) did not know the wrongfulness of his act, OR
    • ------b) could not understand the nature and quality of his acts
    • 2) Irresistable Impulse test (volitional)
    • ------a) unable to control his conduct or conform his conduct to the law
    • 3) MPC Substantial Capacity test (cognitive + volitional)
    • ------a) appreciate the wrongfulness of his conduct, OR
    • ------b) conform his conduct to the requirements of the law
    • 4) Durham test
    • ------a) criminal conduct was the product of a mental illness or disease
  7. Intoxication
    Intoxication may excuse criminal liability
  8. Voluntary Intoxication
    • 1) voluntarily and knowingly consumes an intoxicating substance
    • 2) no defense to crimes requiring SL, general intent, or malice
  9. Involuntary Intoxication
    • 1) involuntarily or unknowingly consumes an intoxicating substance
    • 2) defense to all crimes if the intoxication renders defendant "insane" under the applicable test
  10. Diminished Capacity
    • Minority of states recognize this defense where evidence of D's mental defect is admissible to prove:
    • D did not have or could not form the intent required for the crime
  11. Reasonable Mistake of Fact
    D makes a reasonable mistake of fact, or is ignorant of a fact that negates the required mental state for the crime, D is not guilty of that crime
  12. Unreasonable Mistake of Fact
    D is mistaken or ignorant of a fact, but the mistake is unreasonable under the circumstances, then the mistake is a defense only to a specific intent crime
  13. Mistake of Law
    Mistake or ignorance of the law is no defense
  14. Entrapment
    • D must show:
    • 1) the criminal plan originated with the govt, and
    • 2) defendant was not predisposed to commit the crime prior to contact with the govt
  15. Age, infancy
    • 1) under age 7, no criminal liability
    • 2) 7-14, rebuttable presumption of no liability
    • 3) over 14, treated as an adult
  16. Duress
    • D's crime, except an intentional homicide, is excused if committed under the threat of:
    • 1) imminent death
    • 2) great bodily harm
  17. Crime prevention
    • a police officer or private person may use deadly force if reasonably necessary to:
    • 1) prevent the commission of a dangerous felony
    • 2) apprehend a dangerous felon