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