CRIM LAW CH. 14

Insanity

o All persons are presumed sane
o If adjudicated insane a person can still be found guilty of a criminal act during a lucid moment
o John Hinckley's attempted assassination of president Reagan resulted in review of the status of insanity defenses
o Common

M'Naghten test

at the time of committing the act, the party accused was laboring under 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 did not know what he was doing was wrong
o

Durham Test

unlawful act is the product of mental disease or defect
o Did not gain much judicial support
o Has been discarded

Substantial Capacity Test (ALI)

a person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, a person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement

Insanity defense reform act of 1984

o Congress response to dissatisfaction of ALI/Substantial Capacity Test
o Eliminates the volitional prong and essentially reverts to the M'Naghten Rule
o Requires the defendant to prove the defense by clear and convincing evidence.

Not guilty by reason of insanity

o Subject to institutionalization or commitment to a mental institution
o Determined after the verdict at trial
o Some courts shifting to "guilty but mentally ill

Many states eliminating insanity as a defense

o U.S. supreme court refusing to hear the cases
o State can chose the standard for recognizing insanity as a defense

Automatism

o Unconsciousness as a basis for a defense
o Criminal conduct is beyond a person's knowledge and control
o Example: Sleepwalking

Duress

o Common law recognized duress when coercion involved threats of harm that were "present, imminent and pending" and "of such nature as to include well-grounded apprehensions of death or serious bodily harm if the act was not done"
o Never a defense for th

Necessity

o Forces beyond the defendants control require the defendant to pick the lesser of two evils
� If there is a legal alternative the defense fails
o Recognized at common law
� Result of nature, not human beings
o Modern uses:
� Defense to civil disobedience

Consent

o In most instances, a victim cannot excuse a criminal act
o Exception is when lack of consent is an element of the offense
� Examples: larceny, rape
o Must be voluntarily given
� Legally competent
� Not under force, threat, or deception
o Never a defense

Mistake of law

o Ignorance of the law is no defense
o In some instances an honest but mistaken view of the law may be accepted as a defense
� Examples - technical questions regarding legal title to an asset in larceny cases; mistake regarding the validity of a divorce
o

Mistake of Fact

o Common law recognized a bona fide mistake of fact as a sufficient excuse
o American courts generally agree with this view for general intent crimes if the mistake of fact is reasonable under the circumstances
o Specific intent crimes require the mistake

Alibi

o Means "elsewhere"
o Defendant who claims to have been at a place other than where the crime allegedly occurred
o Not considered an affirmative defense
o Rules typically require the defendant to give notice of the alibi defense

Justifying the use of force

-Justifiable use of force applies to assaultive and homicidal offenses

Deadly force in self-defense

o Person is in a place they have a right to be
o Act without fault
o Act in reasonable fear or apprehension of death or great bodily harm

To determine if the use of deadly force is justified the courts consider a number of factors

o Sizes of the parties
o Ages of the parties
o Physical abilities of the parties
o Whether the attacker was armed
o Attacker's reputation for violence

Nondeadly force

person may use whatever nondeadly force appears to be reasonable necessary

Self-defense

admit the commission of the assaultive act but claim to be protecting themselves
- Once raised, the prosecution typically must prove beyond a reasonable doubt that the accused did not act in self-defense
Test of reasonableness
- 12.1-05-03 - self-defense

Common law standard (self-defense)

duty to "retreat to the wall" before using deadly force in self-defense
o Actual danger of loss of life or suffering great bodily harm

American standard (self defense)

the danger need not be actual but "reasonably apparent and imminent"
o A person may stand their ground and use any force reasonably necessary to prevent harm
o Minority of courts require a person to retreat if they can do so safely
� But not from a person

Objective test for the use of deadly force

o Traditional test
o Requires the trier of fact to place themselves in the shoes of a hypothetical reasonable and prudent person

Subjective standard of reasonableness

o Some courts are applying this test
o Whether circumstances are sufficient to induce in the defendant an honest and reasonable belief that force must be used
o Requires the trier of fact to place themselves in the shoes of the defendant

Battered Woman syndrome (BWS)

o Pattern of psychological and behavioral symptoms of a woman living with a male in a battering relationship
o Actions are the response to constant battering by a man she lived with
o Law is still being developed in this area
� Most courts are allowing ex

Defense of others

o Common law a defender had the right to use reasonable force to prevent the commission of a felony or to protect members of the household
o American trend is to allow a person to stand in the shoes of the victim and use such reasonable force as is necess

Defense of habitation
o Common law

places great emphasis on the security of a person's dwelling
� Permitted the use of deadly force against an intruder
� Castle doctrine

Defense of habitation today

o Today deadly force may be justified to prevent forcible entry into the habitation in circumstances where the occupant reasonably apprehends death or great bodily harm to self or occupants
� Believe may commit a felony

Defense of property

o More limited than the right to protect your home
o Common law allowed reasonable force (not deadly) to protect personal property
o American view varies by statute
� Typical view is to allow reasonable force to prevent interference with property
� Some c

Defense to being arrested

o Common law could use such force as reasonably necessary, short of killing, to resist an unlawful arrest
o The majority of American courts reject this view and do not permit resistance to arrest even if it is illegal

Use of force by police

o Degree of force controlled by statute
o Typically can use such force as is reasonably necessary to effect an arrest and are not required to retreat
o Use of deadly force limited to situations where it is necessary to prevent the escape of a suspect who

Fifth amendment - "no person...shall be compelled in any criminal case to be a witness against himself.

o Applicable to the states through the fourteenth amendment
o Only applies to natural persons, not corporations
o A person may refuse to answer any question put before him in a civil, criminal, formal or informal proceeding when the answer might incrimina

Immunity

grant of amnesty to protect a witness from prosecution for compelled testimony

Use immunity

testimony cannot be used against the witness

Transactional immunity

protects a witness from prosecution for any activity mentioned in the witness's testimony

Contractual immunity

purposed to induce a suspect to testify against someone and enable the prosecution to obtain a conviction

Diplomatic immunity

those with diplomatic status, their families, and staff are immune from prosecution

Double jeopardy - concept of forbidding retrial of a defendant who was found not guilty

o Developed from common law
o Fifth amendment - "[N]or shall any person be subject for the same offence to twice be put in jeopardy of life or limb."
o Applicable to the states through the fourteenth amendment
- Jeopardy attaches once the jury is sworn in

Mistrial

o If defendant requests, the prosecution can retry the case
o If prosecution requests, the prosecution can retry the case only if they can establish a manifest necessity for the mistrial
- Hung jury
- Does not bar prosecution by both the state and the fed

Statutes of limitations

legislative enactment that places a time limit on the prosecution of a crime
o Common law placed no time limits on prosecution

Policy reasons

o 1. Generally accepted that a person should not be under threat of prosecution for too long a period
o 2. After a prolonged period, proof is either unavailable or, if available, may not be credible
- Legislatures rarely put time limits on the prosecution

Entrapment - when law enforcement manufactures crime by implanting criminal ideas into innocent minds

o May provide opportunity for a predisposed person
o Does not apply to persons who are not law enforcement and not working. . .
o Not a defense at common law
o Not based on the constitution

Defenses in general
o Negative defense

not required to be specifically pled
� Defendant has to raise the evidence
� Burden of production of evidence
� Once produced, the prosecution has the burden to overcome it
� Sometimes the defendant has the burden to prove the defense by a preponderance o

Affirmative defenses- must be specifically pled

o Evidence doesn't simply negate an element of the offense
o New matter relied on as an excuse or justification for the illegal conduct
o Defendant must prove by the preponderance of the evidence
o Ex:
� Boatman burglarizes a vacant beach cottage, he rais

Lack of capacity

o Defendant admits the actus reus but denies criminal responsibility
� Claims a lack of mental capacity to form the criminal intent

Lack of capacity: 4 categories

� Infancy
� Common law a child under the age of 7 presumptively incapacitated
� Rebuttable presumption for children between ages of 7 and 14
o Prosecution had to prove that the child comprehended their wrongdoing
� Children over the age of 14 were treated

NDCC- infancy

agree with common law that under age of 7 are deemed incapable of committing a crime, less than 14 they must be treated as a juvenile, when 14 and up process where you could be charged as an adult

Intoxication- ingestion of alcohol or drugs
� voluntary

o Never a defense at common law
o Some jurisdictions consider whether can formulate specific intent
o Rarely a defense for general intent

Involuntary

o Very rare
o Issue whether the defendant knows right from wrong