Criminal Defenses

Defenses in generalTwo different kinds of defenses:

1. Responsibility: People who argue they are not responsible for their actions because of some issue with their minds.

2. Justification/excuse: People who have no issues mentally, but who have a reason why they did what they did.

The Insanity DefenseIf D can show he was insane at the time he committed a criminal act, he may be entitled to the verdict “not guilty by reason of insanity.” If D succeeds with the insanity defense, he does not walk out of the courtroom free. In virtually every state, any D who succeeds with the insanity defense will be involuntarily committed to a mental institution.Listen to discussion of Jared Lee Loughner (rt), shooter in Gabrielle Giffords case (1/8/2011).

The Insanity DefenseIn Illinois, three results can come from an insanity plea:

1. Not guilty by reason of insanity: Jury buys it, D is sent to a mental facility (probably for the rest of his/her life).

2. Guilty: Jury doesn’t buy it, D goes to jail.

3. Guilty but mentally ill: Jury kind of buys it, D goes to jail but receives treatment while incarcerated.

NOTE: Feds have 1 (mental hospital, but very difficult). AZ doesn’t have 1. . .guilty but insane, get treated, then go to jail.

The Insanity Defense

The insanity defense can be heartbreaking, difficult to prove or disprove.

EXAMPLE: Naperville mother Marilyn Lemak murdered her three children, pled insanity.

Another.

The Insanity Defense

EXAMPLE: Lashuan Harris (right) threw her 3 kids (6, 2, 16 mos.) into SF bay in 2005.

Paranoid schizophrenic; laughing, talking to herself, rocking, smiling to self, etc.

Thought God told her to do it; felt they were in heaven.

The Insanity DefenseJeffrey Dahmer killed and ate parts of victims, kept bodies, parts as trophies. Gacy (below) murdered 33 young boys and buried most of them under his house.

Was Dahmer insane? Was Gacy?

What kind of person commits such a crime? What kind of person commits any crime? Are we all insane? Sane? Where’s the line??

What is the legal test to prove insanity with regard to crime?

The Insanity DefenseBefore we get into the tests, one thing you should know:

NOTE: In many states, the insanity defense is coupled with a rule that no evidence relating to mental disease or defect may be introduced except as part of an insanity defense.

The Insanity DefenseEXAMPLE: D is charged with knifing his wife to death. As part of his defense, he tried to show that his depression and panic attacks prevented him from forming the intent to kill her. Given what was said in the note above, may he do this? Why or why not?

Point: Not in most states. All or nothing. Either he is insane or he isn’t. . .but some will allow for introduction of evidence of mental problems.

The Insanity Defense: TestsTests for insanity: There are two principal tests for whether D was insane – each used in different jurisdictions:

1. The M’Naghten Test

2. Irresistible impulse test

The M’Naghten RuleArose from the attempted assassination of British Prime Minister Robert Peel (right) in 1843 by Daniel M’Naghten (who was mentally ill, delusional).

Killed Peel’s secretary, Edward Drummond, with a pistol shot.

Judges found him not guilty by reason of insanity, Queen Victoria concerned; called judges before House of Lords to defend their verdict. Their explanation became “The M’Naghten Rule.”

The M’Naghten RuleTo establish insanity, the judges felt that a D must prove:

1. that he suffered a mental disease causing a defect in his reasoning powers, and,

2. that as a result, either (a) he did not understand the “nature and quality” of his act or, (b) he did not know that his act was wrong.

Set the standard for British and American law. Still in use in some form in 25 of the states today.

The M’Naghten RuleD (who has a mental disorder) strangles his wife believing that he is squeezing a lemon. Insanity?

Point: Probably insane. Didn’t understand the “nature and quality” of his actions.

“I thought I was killing a giant panda” kind of thing would qualify too.

NOTE: Very rare to get someone like this. . .have to truly not know what he/she is doing.

The M’Naghten RuleD (who has a mental disorder) kills a cop thinking he is a Russian spy. Insanity?

Point: (1) Understand what he’s doing? Killing. . .but a spy? (2) Knows killing is against the law, but sees it as justified.

Would seem to know he’s killing, sure, but doesn’t seem to know who/what he’s killing.

Would seem to know it’s morally wrong. . .but also not (I’ve saved the USA!). Complicated.

The M’Naghten RuleD is attracted to bright objects, and therefore shoplifts jewelry constantly, though intellectually he knows that this is morally wrong and also illegal. Is D insane under the M’Naghten test (if he has a mental disorder)?

Point: No. (1) Knows this is wrong; (2) Understands the nature and quality of his actions.

The M’Naghten RuleD kills his wife because he believes he hears the voice of God telling him to do so. He has a history of mental problems. Can he claim insanity?

Point: Yes. Deific commands are good under this.

The M’Naghten Rule

EXAMPLE: Lashuan Harris (right) threw her 3 kids (6, 2, 16 mos.) into SF bay in 2005.

Paranoid schizophrenic; laughing, talking to herself, rocking, smiling to self, etc.

Thought God told her to do it; felt they were in heaven.

Found insane in 2007.

The M’Naghten Rule(State v. Crenshaw, 1985, 976 in Crim Law) D with long history of mental illness kills his wife because he thinks she has been unfaithful to him. When arrested, he admits he killed her, but he claims it was his duty to do so under his Moscovite religious faith. He did this, even though he knows that society thinks killing is wrong and that it’s illegal. Is this insanity under M’Naghten?

The M’Naghten RulePoint: No. He knows his acts were morally wrong from society’s viewpoint and also knew his acts were illegal. Guilty

His personal belief that it was his duty to kill his wife for her alleged infidelity can’t get him off the hook here. Deific command people have their free will subsumed to the belief in the deific decree. This was not available to Crenshaw. He argued that he followed the faith and that the faith believes it is their duty to kill an unfaithful wife.

This is not the same as deific command. His beliefs are not the equivalent to a deific decree and do not relieve him from responsibility for his acts.

The Insanity Defense

Go back to Marilyn Lemak, who again murdered her three children, pleaded insanity.

Lemack failed, received life in prison.

The M’Naghten RuleDahmer and Gacy were not found legally insane. Was very methodical. . .seemed to know what he was doing was wrong.

Point: This test is a difficult one to meet. Few plead insanity, and even fewer are successful.

“Successful”? Life in mental facility/prison.

This truly is for the sickest of the sick; some think the standard is too high.

The M’Naghten RuleWatch the films about John Hinkley and Andrea Yates and ask yourself. . .were these people insane or not?

Interesting follow up: Rusty Yates interview.

Follow up two: 30th anniversary of Reagan attempt (3/30/11).

The M’Naghten Rule

Lorena Bobbitt cut off her husband’s. . .ouch. Charged with “malicious wounding” (mayhem).

Found NG/Insanity using a second test, the “irresistible impulse” test.

The Irresistible Impulse TestIn the late nineteenth century some states and federal courts in the United States, dissatisfied with the M'Naghten rule, adopted the irrestible impulse test.

Felt M’Naghten was focused on thought, but didn’t focus on emotion.

This test, which had first been used in Ohio in 1834, emphasized the inability to control one's actions.

The Irresistible Impulse TestA person who committed a crime during an uncontrollable "fit of passion" was considered insane and not guilty under this test.

Person here may understand right from wrong, but could not control his actions.

The Irresistible Impulse TestLook at the example of the shoplifter above (loves bright/shiny objects, can’t control himself even though he knows it’s wrong). Would this pass the “irresistible impulse test”?

Point: Yep. Textbook example.

The Irresistible Impulse TestToday, this test is discredited.

Only in use in four states, and only in combination with M’Naghten.

Why? John Hinckley. He used this to defend himself, found NG by reason of insanity. People were outraged, states tightened up.

Interesting follow ups on Hinckley, BTW (1, 2).

Other insanity tests. . .Substantial capacity: Test created in 1962 as part of the “Model Penal Code.” (referred to as the MPC test also)

“A person is not responsible for criminal conduct if at the time of such conduct (1) as a result of mental disease of defect (2) he lacks substantial capacity either to (a) appreciate the criminality of his conduct or (b) to conform his conduct to the requirements of the law.”

What is this? M’Naghten + irresistible impulse.

Insanity Defense: ILToday, Illinois law states a person is not criminally responsible for conduct if "as a result of a mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.“

“Substantial capacity” from above definition, but see what’s left out?

ANS: “conform his conduct to the requirements of the law.” (irresistible impulse factor).

Very “M’Naghten” like. . .just uses the phrase “substantial capacity.” This is a modified version of the MPC test. Six other states follow something similar.

Insanity Defense: ILIn 1981, Illinois adopted the verdict of "guilty but mentally ill," an option that continues to stir vigorous debate. Defendants who are guilty but mentally ill are sent to prison for the same term as they would be if convicted without the qualifier of their mental illness. They are supposed to get additional psychiatric care. They rarely do.

Apart from being somewhat disingenuous, the verdict of guilty but mentally ill often confuses jurors, critics said.

Insanity Defense: IL"It's sort of an illegitimate compromise," said Paul H. Robinson, a Northwestern University criminal-law professor and former federal prosecutor. "Jurors can feel like they're doing their job even though they're not doing their job."

About the same time, Illinois narrowed its legal definition of insanity. The state tossed out part of the definition that deemed insane someone who was unable to control his actions, the so-called irresistible-impulse test. (1981. . .when was Reagan shot)

Insanity Defense: ILRemember story of Jeanette Sliwinski? Pleaded insanity. Was admitted to mental hospital two weeks before crash, released after one day. Attny claimed psychiatrists failed her.

“Guilty but mentally ill” of reckless homicide. 8 years, served 4. Released. Oct. 2008.

The insanity defense: Currently, 17 states use the M’Naghten rule (1&2).

10 states only use the “knew it was wrong” test.

14 states use the “knew it was wrong” test in combination with the “irresistible impulse” test (more on this later).

3 states use M’Naghten (1&2) in combination with “irresistible impulse” test.

14 states use the “knew it was wrong” test OR the “irresistible impulse” test.

Insanity defense: Others

Ed thomas murder

Elizabeth Smart: Guilty

Trib article: Too many privileges? (Google Karl Sneider, killed, decapitated mother, put head on porch when she threatened to put him in mental hospital).

Insanity Defense: Fed. LawFederal Insanity Defense Reform Act (1984) (after Hinckley).

"It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense."

Insanity Defense: Fed. LawThis act, a response to the Hinckley verdict, eliminated the Irresistible Impulse Test from the insanity defense under federal law.

The act also provided that "the defendant has the burden of proving the defense of insanity by clear and convincing evidence.“

Previously under federal law, the government had the burden of proving sanity.

Insanity: Burden of ProofIf a D throws the insanity plea on the table, who is the prove what?

Does the P have to prove the D is sane? Or does the D have to prove that he’s insane?

ANSWER: D has to prove he’s insane; must do so with a preponderance of the evidence. (Not beyond a reasonable doubt).

Why? Hinkley. . .used to be P’s job to prove sanity. No more.

Law in IL changed in 1981. . .soon after Hinkley verdict.

Insanity DefenseFour states have no insanity defense at all (Idaho, Kansas, Montana, Utah).

Right to the insanity defense? No. USSC case in 1994 allowed states to deny this.

Insanity DefenseDs in these states may introduce evidence of a mental disease or defect as evidence that they did not possess the requisite intent or state of mind (mens rea) to be found guilty.

Three (Montana, Utah, Idaho) also have “guilty but mentally ill” (jail with treatment).

Insanity: Other “syndromes”In the US, many different “syndromes” have been presented in criminal trials.

Some of these are presented as part of an insanity defense, others are part of an effort to get a “not guilty” vote.

Here are just a few of these: interesting.

Insanity: Other syndromesBlack Rage Syndrome: Created by NY attorney William Kunstler after reading Black Rage by Grier & Cobbs. Anger over racial injustice serves as catalyst or trigger for pre-existing mental problem. Used unsuccessfully in the Colin Ferguson (right) case who killed six passengers on a Long Island train.

Chronic Lateness Syndrome: Used in 1992 to explain a fired Chicago school teacher's tendency to arrive late. Admitted as attempt at justification.

Insanity: Other “syndromes”Distant Father Syndrome: Invented by Robert Bly in book Iron John (1993), explains crime as vindictiveness toward an absent father who never paid child support and never showed son his workplace.Drug Abuse Defense: (People v. Richard 1989, CA) often the claim of child molesters that they are not responsible because they were high on drugs at the time, generally unsuccessful.

Insanity: Other “syndromes”Fan Obsession Syndrome: First invoked by psychiatrist Park Elliot Dietz in 1992 to defend Robert Bardo who killed actress Rebecca Schaeffer. Jury didn't buy it.Fetal Alcohol Syndrome: If mother consumed alcohol during pregnancy, produces "sadistic side" of personality later in life, similar to Fetal Trimethadione (Epilepsy medicine) syndrome. Admissible in U.S. and taken quite seriously in Canada.Intermittent explosive disorder (?!): 1,2.

Insanity: Other “syndromes”Gone with the Wind Syndrome: Named after the movie & used by rape experts to explain why rapists believe sex has to be spontaneous and done after some resistance on the part of the woman.

Meek-Mate Syndrome: First invoked by a CA man in 1994 who killed his wife because she psychologically emasculated him by calling him names, ridiculing him in public, and forcing him to sleep on the floor.

Insanity: Other “syndromes”Premenstrual Stress Syndrome: Hormonal changes are so severe that a woman is driven to the unthinkable. Used successfully to acquit Virginia surgeon Geraldine Richter in 1991 for DUI & Zsa Zsa-type behavior.

Rock and Roll Defense: Alleges that subliminal messages in rock , or in some cases rap, music, were the cause of conduct. Used in Manson defense (Beatles), Judas Priest (1990), and Tupac Shukir music.

“Impoverished French Muslim syndrome” (?!)

Insanity: Other “syndromes”Daniel Petric (17), plays Halo 3 18 hours a day (incapacitated by injury). Parents limit his playing time; he plans, shoots both parents in he head (“Close your eyes…I have a surprise for you”), tries to make it look like a murder/suicide, takes the game. Kills mom, dad survives.Lawyers argue insanity; addiction to video games blinded him to the reality/finality of death.Didn’t work. Guilty, 17 to life 6/09. Judge though felt this was akin to drug addiction, understood.

Insanity: Other “syndromes”

Story of a defendant who claimed “caffeine induced psychosis.” (2009). Charges were dropped in 2010.Again, how are these used? Can be (1) part of insanity (as we’ve studied them) or (2) an attempt to get someone on the jury to just say “not guilty.” Depends on the case, judge, etc.

Insanity: “Twinkie Defense”Probably the most infamous “syndrome.”Murder of George Mosconi, Harvey Milk (1, 2) by Dan White in 11/27/78. News breaks.Soon after Jonestown (11/18/78)…another.Argued that he suffered from “diminished capacity” brought on by depression. “Insanityish” defense allowed in CA at the time: Not able to form intent needed for some crimes.Convicted of vol manslaughter, not 1st degree murder. Outrage (White night riots) in SF.

IntoxicationWhat happens when a D is intoxicated at the time he/she commits a crime?

EXAMPLE: Story of Martin Heidgen, (7/05, trial: 2006).

Example: HomicideTake Martin Heidgen. . .what do you charge him with? His mind is clouded by alcohol. . .

1st Degree: Intentional, premeditated

2nd Degree: Intentional, spontaneous; (2) intent to inflict grievous bodily injury; (3) reckless disregard for human life (knew of a risk, kept going).

Invol. Manslaughter: Criminally negligent (did not meet duty of care)

Currently appealing. Heard 1/11.

Kathleen Rice: Divisive figure. Dabbled in drugs herself. . .Ran for NY attny general’s dem. nom., lost.

IntoxicationFrom the outline: Voluntary self-induced intoxication does not “excuse” criminal conduct, in general.

Although voluntary intoxication is not an “excuse,” it may prevent D from having the required mental state. If so, D will not be guilty. Thus even self-induced intoxication may prevent D from having the requisite intent, if the crime is defined so as to require intent.

IntoxicationSuppose that in a particular jurisdiction, first-degree murder is defined so that D must be shown to have had the intent to kill. D gets drunk in a bar and on the spot decides to kill another patron in the bar. He sits down and plans what he is going to do, searches for a weapon, finds a bat behind the bar and attacks the patron, killing him. He is charged with first-degree murder. Can he use his drunkenness as a defense?

Point: Yes. Drunken state does not equal intent to kill. Should not be charged with this in the first place. . .could be 2nd or invol.

IntoxicationD, sober, decides to place a bomb under V’s car, in the hopes that V will be blown up. D prepares the bomb. D then gets drunk. In his drunken stupor, he places the bomb under X’s car; he is so drunk that he forgets why he is doing this, and at the moment the bomb is placed (and the moment a little while later when it goes off), D has no intent to harm anyone.

Point: Intent here existed first. . .moment he prepared bomb. Murder.

IntoxicationIN OUTLINE: The most important single fact to remember about intoxication is that in most courts, intoxication will not eliminate the element of recklessness.

In other words, if a particular element of a crime can be satisfied by a mental state of recklessness, D’s intoxication will be irrelevant.

IntoxicationIn a date rape case, D argues that V consented, or at least that D believed that V was consenting. Problem was, when the alleged rape took place, D was intoxicated. If D’s drunkenness prevents him from realizing that V is not consenting, can D use the defense of “I thought she was consenting”?

Point: Rape. Recklessness here. Rape definitions don’t require “intent” as they do with homicide. Can recklessly rape someone.

IntoxicationTake the date rape case above, but add in the following: D’s intoxication is involuntary because his friend gave him LSD-laced punch. Is this still rape?

Point: No recklessness in getting high here. No.

IntoxicationWhat if the person accused of rape says that he is an alcoholic and argues that his intoxication was “involuntary,” and he should therefore be subject to the more liberal standards for “involuntary” as opposed to “voluntary” self-intoxication described above?

Point: Doesn’t work. Can’t blame alcoholism.

IntoxicationWhat if a D robs a bank because he is a drug addict and says he “can’t control himself” and his addiction. Do you think this defense would work?

Point: Doesn’t work. Can’t blame drug addiction.

Intoxication: IL lawIntoxicated or drugged condition: A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is (1) involuntarily produced and (2) deprives him of substantial capacity either to (a) appreciate the criminality of his conduct or (b) to conform his conduct to the requirements of law.

Sound familiar? It’s the “substantial capacity” test we did in insanity. . .that’s how intoxicated you have to be.

Recent story.

The infancy defenseRemember Andrew Golden, Mitchell Johnson (rt.)?

Murdered 5 (Stephanie Johnson, Paige Herring, Brittany Varner, Shannon Wright), wounded 10 in Westside MS shooting (3/24/98).

Released at 21. . .AK law at time.

Question: What happens when children commit crimes, especially murder?

The infancy “defense”Top recent case: Jordan Brown (PA) charged with murder for killing father’s fiancée and her fetus (she was pregnant). 11 at time of murder. Follow up (video). Will be charged as an adult (3/29/10).Sent back to adult court (3/14/11). Blog.Question: As with insanity and intoxication, can children form mens rea? Should they be treated as adults?

The infancy “defense”The law believes that children are not capable of committing crimes. Traditionally, this is between the ages of 7-14.

The idea here is that a child is not able to form the mens rea necessary for certain crimes. Under modern laws, most states provide that children under a certain age shall not be tried for their crimes but shall be turned over to a juvenile court.

The infancy “defense”Prosecutors will consider certain factors in deciding whether or not to charge young offenders as adults:

1. Age of the D.

2. Seriousness of the crime.

3. Did the kid know what he/she was doing was wrong?

4. Is this child able to be rehabilitated?

• Lionel Tate (rt): Youngest in American history to be found guilty of 1st degree murder. . .kind of.

The infancy “defense”Youngest I know of? Dedrick Owens, killer of Kayla Rowland (6, left). Not sure what happened to him. Uncle guilty of involuntary manslaughter.

Tragic: Story of Michael Brewer. Burned by four other kids over video game in 2009. Three charged as adults. Appeared in court (3/11). Brewer just celebrated birthday (10/12/10)

IL law on infancy:Juvenile in IL: 13-17. Can be charged as adult/juvenile, depending on four factors.

If less than 13, child not charged at all. Society is blamed, child is ward of state, placed in high risk foster home.

At 18 (at the time of crime), you are charged as an adult, period.

IL law on infancyCharged as juvenile? Get a sentence and time added on for bad behavior but must be released at 19 ½ regardless of conduct. If under 18 and charged as adult, sentenced like adult, but goes to youth prison until 18, then transferred to adult. If juvenile not charged with specific crime but adjudged “delinquent,” locked up until further order of court but must be released at 18.“Delinquent?” Usually used for a kid that hasn't been convicted of anything big to get to prison, but the family can't handle them and they can't be controlled in even high risk Foster care.

II. Justification and excuseThe twin doctrines of “justification” and “excuse” allow D to escape conviction even if the prosecution proves all elements of the case.

Here is a list of the main justifications: (1) duress; (2) necessity; (3) self-defense; (4) defense of others; (5) defense of property; (6) consent; (7) maintenance of domestic authority; (8) entrapment.

A. Duress defenseD is said to have committed a crime under “duress” if he performed the crime because of a threat of, or use of, force by a third person (not a situation) sufficiently strong that D’s will was overborne.

The term applies to force placed upon D’s mind, not his body.

A. Duress defenseX forces D to rob Y, by threatening D with immediate death if he does not.

Point: Yes.

D is a member of a gang run by X. X and the other gang members tell D that if D does not kill V, an innocent witness to one of the group’s crimes, they will kill D immediately. D reasonably and honestly believes this threat. D kills V. Can he claim duress?

Point: Not available for homicide usually. (even if he is forced into the gang).

A. Duress defenseD is coerced into driving X to a robbery site. During the robbery, X intentionally kills V, a witness, to stop V from calling the police. Can he raise the defense of duress here?

Point: Accepted in felony murder. Yes.

A. Duress defenseIn Commonwealth v. Perl, the D, Dr. Alan Perl, was a physician who provided LaCorte, described as a “longtime criminal,” with prescriptions and pills after LaCorte mentioned in August 1993 that he knew where Perl’s daughter attended school. This was followed by threats in January, March, and July of 1994. On the last occasion, LaCorte told Perl that if he did not provide him with pills that “I will see your daughter.” Perl continued to provide LaCorte’s pills between August 1993 and Oct. 1994. Duress?

A. Duress defensePoint: NO. Massachusetts appellate court denied him the defense because LaCorte’s threats were of future harm and were not “present, immediate, and impending.” Threats typically have to be immediate.

A. Duress defenseWhat if the threat isn't against the defendant, but against his family? Can he claim duress?

Point: Yes. Some say person of “reasonable firmness” would be coerced (MPC).

Think of “Lucky” the Care Bear: not reasonable firmness.

A. Duress defenseIn State v. Van Dyke, defendant Sheryl Van Dyke was a 34-year-old mother of two who had been married for 15 years. She was convicted of the sexual assault and endangerment of the welfare of JM, a 13-year-old boy with whom she had an affair. Van Dyke claimed that she entered into and continued the relationship out of fear resulting from JM’s periodic physical abuse and threats to seriously assault her daughter and to choke her son to death. Duress?

A. Duress defensePOINT: NO. NJ Superior Court ruled that society could reasonably expect that the will of the average member of the community would not be overwhelmed by the type of threats directed at Sheryl Van Dyke and her family.

A. Duress defenseWhat if D voluntarily joins an organized crime group known to have the policy of omerta, or death to anyone who informs on the gang. D is called to the witness stand, and lies to protect other gang members. Can he claim duress?

Point: Places self in the situation. . .no.

B. Necessity defenseThe defense of “necessity” may be raised when D has been compelled to commit a criminal act, not by coercion from another human being (which would be duress), but by non-human events.

The essence of the defense is that D has chosen the lesser of two evils.

B. Necessity defenseD needs to get his seriously ill wife to the hospital. He therefore violates the speed limit. Assuming that there is no available alternative, such as an ambulance, can D claim the defense of necessity?

Point: Yes. But, look at the next one.

B. Necessity defenseWhat if D’s wife is in labor and he drives her to the hospital at 125 miles per hour so “that stuff won’t mess up my seats.” Can D claim the defense of necessity when he is charged with speeding?

Point: Yes. . .but it probably won’t work too well. Have to weigh the relative good and evil that will come from the acts. Here, the good (keeping his seats “OK”) doesn’t seem to out weigh the evil (speeding).

B. Necessity defenseRyan Moats, NFL running back, pulled over for running a red light (3/09). Going to hospital to see dying mother-in-law.

Nurse comes out to corroborate; officer would not budge. Keeps him 13 minutes. Woman dies.

Necessity valid here. Ticket was dismissed.

Officer later resigned.

B. Necessity defenseD, a mountain climber, is roped to V, who has fallen over a cliff. If the only alternative is that both climbers will die, D may cut the rope even if this will inevitably cause V’s death.

Point: Reluctant to allow this for homicides. . .lesser of two evils though (one or two deaths?).

Point II: Remember Dudley and Stevens? Same idea.

B. Necessity defenseHow about the guy above with the wife who is seriously ill. . .what if he speeds, clips another car and the car crashes, killing the driver? Necessity?

Point: This is a homicide. . .guess it would depend on how negligent he was and the circumstances of his being negligent.

B. Necessity defenseWhat if D, an unemployed worker, steals food so that he doesn’t starve. Can he claim necessity?

Point: No. . .unless he is going to starve now.

B. Necessity defenseWhat about this one: To protest U.S. military assistance to El Salvador, the Ds trespass in their local IRS office, splash blood on the walls, and do other criminal acts to draw attention to why U.S. policy is bad. Can he claim necessity?

Point: Nope. . .other lawful ways to bring about change. Use the Elsa example. . .can’t claim this.

B. Necessity DefenseEX: James Kopp (1998), murders Barnett Slepian (obs./abortion provider). Shot in kitchen in front of family.Kopp argued necessity. Obligation to stop murder of unborn, only way is to shoot them (argued he only meant to wound Slepian).Lost argument. Guilty, 25-life for 2nd degree murder.Another example.

C. Self DefenseThere is a general right to defend oneself against the use of unlawful force. Key here: D must use the amount of force that reasonably seemed necessary to protect himself from the imminent use of unlawful force on him.

Defense is all about (1) reasonableness and (2) proportionality.

C. Self DefenseJim attacks Bob, punching him again and again. Bob punches Jim, knocking him to the ground. Bob is then able to escape. Can Bob claim self-defense?

Point: Yes. He was being threatened with force and responded enough to protect himself.

C. Self defenseSame situation as above, but instead of just punching Jim, Bob punches him, knocks him down, then beats him for the next five minutes until Jim is unconscious. Can Bob claim self-defense?Point: No. Force here is excessive. . .he can only use force enough to defend himself against harm. He went too far. EXAMPLE: Shooting of robber here.

C. Self defenseSame situation as above, but instead of punching Jim, Bob pulls a gun and shoots Jim dead. Can Bob use deadly force and claim self-defense?Point: No. Can’t use deadly force unless faced with deadly force. If X had pulled a gun first, then this could be OK. Difference though between Indiana Jones shooting swordsman and John McClain shooting the terrorists (yipee kay yay. . .)Officer Kruis: Sword, gun, doesn’t matter. Don’t know skill.All about reasonableness. . .Example: CNN story, Chicago (5/27/10), bricks v. gun.

C. Self DefenseAGGRESSORS: How about this one: Bob walks into the bar, sees Jim (who he hates) and jumps him, punching him over and over. Jim fights back and the two of them continue to fight. Can Bob claim self-defense?Point: No. Bob is the aggressor here. Can’t claim self-defense if he started it. Even if he just starts an argument that causes the V to strike him. Even though the V struck the first blow, D is the aggressor. . .he started the altercation in the first place.

C. Self defenseWhat if the same thing happens as above, but when Bob and Jim start fighting, Jim pulls out a knife and tries to stab Bob. Bob then pulls a knife and stabs Jim, killing him. Can Bob claim self-defense? Point: Yes. He was the aggressor, but he was confronted with deadly force unexpectedly.

C. Self defenseV tells D on the telephone, “I will kill you tomorrow.” D goes to V’s house and shoots V. Self-defense?

Point: No. . .no imminent harm here. Can’t claim this. No pre-emptive strikes.

C. Self defenseWhat about this. . .let’s say D, a woman, lives with V, her abusive husband. V comes home one day from work and begins abusing his wife. She runs into the bedroom, pulls out a gun and shoots him dead as he is coming at her to hit her again. Can she claim self-defense?Point: Danger here is imminent. . .textbook self-defense. Deadly force OK? Probably. . .he could kill her with his beatings.

C. Self defenseWhat if V, after abusing D, has gone to sleep, and D shoots him in the head an hour later while he sleeps? Can she claim self-defense?

Point: No. There is no imminent danger here. Need a physical confrontation. No self-defense.

Could argue “battered woman syndrome,” more like a temporary insanity brought on by abuse.

C. Self defenseWhat about this one: V attacks D with non-deadly force. D could withdraw from the encounter with complete safety, by getting into his car and driving away. D instead stands his ground and fights back with his fists. Can he claim self-defense, even if he could have gotten away?Point: In all states, even those with a general “duty to retreat,” D is privileged, because no retreat is ever required before the use of non-deadly force.

C. Self defenseBut what about the use of deadly force? If V pulls a knife on D and swings it at him, can D claim self-defense if he shoots V dead? What if he could easily have run away? Point: Most statutes also include a duty to retreat (notable exceptions include Louisiana and Florida: see stand-your-ground law), wherein deadly physical force may only be used if the person acting in self defense is unable to safely retreat (see next slide for more).

C. Self defenseA person is generally not obligated to retreat if in one's own home (for example, a person doesn't have to retreat from the living room to the kitchen, then to the bedroom, then to the bathroom) in what has come to be called the "castle exception" (derived from the expression "A man's home is his castle").

C. Self defenseISSUE: D must reasonably believe it was necessary to defend herself.

Question: Who is the reasonable person in any situation?

EX: “Subway vigilante” Bernard Goetz (1984). Approached by 4 youths on subway, asked him for $.

He had been mugged before, felt threatened, opened fire. Hit all 4, 1 paralyzed.

C. Self defenseGoetz: A reasonable person would have felt threatened. Was found not guilty of attempted murder, but guilty of gun violations.Reasonable subway rider who has seen robberies? Been the victim of a robbery? Someone threatened enough to carry a gun? States vary on how much subjectivity can be included in the reasonable person standard.

C. Self defenseAnother iffy self defense story:

Brandon Starks, 20, robs grocery store in Waukegan (10/08).

Clerk gives chase with a pistol, shoots Starks as he flees on a bike.

Self defense? See here and here.

D. Defense of OthersA person may use force to defend another in roughly the same circumstances in which he would be justified in using force in his own defense.

D. Defense of OthersD is walking down the street and sees V pointing a gun to someone’s head (he’s a total stranger) threatening him with death. D, who is carrying a legal firearm, approaches V and shoots him. He argues defense of others. Do you think this would work? Point: Yes. . .deadly force given deadly force of V; (2) even though the other person is a stranger, it still would probably be OK.

E. Defense of PropertyA person has a limited right to use force to defend his or her property against a wrongful taking.

What if D walks out to his car and sees someone stealing the MP3 player out of his car. He approaches V from behind, tackles and restrains him. Can he claim defense of property?Point: Yes. . .used non-deadly force to defend his property. Did just enough to protect his property. OK.

E. Defense of PropertyWhat if the same thing happens, but instead of just restraining V, he beats him for five minutes until V is unconscious and seriously wounded (and all the while, V is begging him to stop). Can he claim defense of property?POINT: No. Here the degree of force used is more than is needed to prevent the taking. POINT II: Probably should not punch someone regardless. . .reasonable?

E. Defense of Property

What if D pulls out a gun and shoots V as he tries to steal the MP3 player? Can he use deadly force and claim defense of property?

Point: No. Can’t use deadly force to defend property.

E. Defense of PropertyWhat if D, asleep in his home, wakes to see a prowler in the hallway. He sneaks up behind the prowler and punches him, knocking him unconscious. Can he claim defense of property?Point: Yes. Defending property can be to (1) prevent the wrongful taking of property and (2) wrongful entry into one’s real property. This is (2).

E. Defense of PropertyWhat about preventing vandalism? Can you tackle/restrain someone TPing/egging your house? POINT: TP/egging isn’t going to leave permanent issues. . .probably not. Call the police. Go after him with a baseball bat? Not good. Lee Yattaw (NY, 2007): Attacked two mailbox baseball guys (27, 33), sent one to hospital. Charged with felony assault.

E. Defense of PropertyWhat if D wakes up, sees the prowler in the hallway, then he reaches into his nightstand for his gun and shoots V, killing him. Can he claim defense of property?

Point: Yes. . .but it probably won’t work. But he could claim self-defense. . .he doesn’t know if the prowler is armed. Can be defending family here.

E. Defense of PropertyOne last one. . .D is returning to his car, sees V stealing the MP3 player. D attacks V, punching him and knocking him down. V then pulls a knife and swings the knife at D. D then pulls a gun and shoots V. Can he claim defense of property here?

Point: When V pulls a knife, it turns into self-defense, not defense of property. This is OK. . .deadly force used to defend against deadly force.

F. ConsentAt times, the victim in a crime seems to have consented to the treatment he/she receives. Does this make a crime not a crime?

Example: President Obama takes an elbow while playing basketball (11/10), needs 12 stitches. . .is the guy who did it guilty of battery? Well. . .no. This is consent.

F. ConsentWhat about this: two people play in a hockey game. One player, the defendant, pushes the victim into the boards as he tries to get the puck. Can we charge the defendant with assault and battery?

Point: No. The V consented to this when he decided to play hockey. No crime.

F. ConsentWhat if in the same hockey game, the defendant comes up from behind the victim and hits him in the head with his stick, in violation of the rules of hockey. Can we charge the defendant with assault and battery?

Point: What happened here goes beyond what the victim consented to. Could charge him. See Marty McSorley v. Donald Brashear (2/21/2000) example, video. Guilty of assault, one year suspension.

F. ConsentMPC standard on consent: “reasonably foreseeable hazards of joint participation in lawful athletic contest or competitive sport or other concerted activity are not forbidden by law.”

Example: Tennessee Titans Albert Haynesworth stomping on the face of the Cowboys’ Andre Gurode in 2006. Gurode did not press charges. Watch clip. . .ouch.

F. ConsentWhat about fight between Andre Johnson and Cortland Finnegan (11/10)? Should they be charged with a crime?Is something like this a “reasonably forseeable hazard” of professional football? Answer: They were not charged.

F. ConsentWhat if a little kid comes up to you and challenges you to a boxing match and you beat him to a bloody pulp. Can you be charged with assault and battery?

Point: Kid here is too young to give consent. Assault and battery. Adult should know better.

F. ConsentSuppose the victim, who is terminally ill with cancer, tells the defendant to kill him and put him out of his misery. Is this murder?

Point: Yes. Consent of the victim doesn’t matter. Generally does not negate criminal liability.

F. ConsentNIO: Creepy version of this: Jan. 1993, Armin Meiwes (rt) posts on Internet, seeking someone to be “slaughtered.” Four respond.Bernd-Jurgen Brandes replies, participated in a videotaped evening of “sexual role playing,” violence. Miewes stabbed Brandes to death, hung the body a meat hook, carved it, stored pieces in the freezer. Ate parts of him: “like communion.” Convicted of manslaughter, then murder in Germany. “Two disturbed individuals.”

F. ConsentD and V agree to drag race. D’s car slams into V’s, killing him. D is charged with negligent homicide. Can D claim consent as a defense? Point: No. The fact that V was negligent also is not a defense. V’s consent will not be a defense, though it might give D a chance to show that V’s negligence, not his own, was the sole proximate cause of the accident.Example: Tiffany Starz case.

H. Entrapment

“Bait car.” (TV Show)Nice car is “abandoned” in dicey neighborhood with engine running, keys left behind, as part of DUI, fight, etc.Outfitted with cameras, locks. Is this legal? Isn’t it police “entrapment”?

H. EntrapmentJim, an undercover narcotics police officer, offers to sell the defendant, Tom, heroin for Tom’s own use. Tom has never used heroin before, but the undercover officer is persistent. . .he follows Tom for an hour, bugging Tom to try some heroin. He offers Tom a bag for free. To make the Jim leave him alone, Tom takes the heroin. he is then arrested for possession. Can Tom, as a defense, claim that he was entrapped by Jim?

H. Entrapment

Point: Yes. The majority test, and the one used in the federal system, is that entrapment exists where: (1) the government originates the crime and induces its commission; and (2) D is an innocent person, i.e., one who is not predisposed to committing this sort of crime. This is the so-called “predisposition” test.

Bait car? No. Govt. doesn’t really induce. . .

H. Entrapment

Q: Why is predisposition so important?

A: If the D was predisposed to commit the crime (had done it previously , jumped at the chance, etc.), the level of police inducement is irrelevant (D may have done it anyway).

H. EntrapmentFactors considered to determine predisposition: (1) character/ reputation of the D (prior arrests, convictions); (2) whether the accused suggested the criminal activity; (3) whether the D was already engaged in criminal activity for profit; (4) whether the defendant was reluctant to commit the offense, and (5) the attractiveness of the inducement.

H. EntrapmentBob drives into a part of town that typically is frequented by prostitutes; he has been there many times before. He approaches a young woman who he thinks is a “woman of the night” and propositions her. Ends up that this woman is an undercover police officer. He is arrested for solicitation but claims that he was entrapped. Was he?

Point: No. He induced the crime and isn’t an innocent person.

Cops must be careful doing stings. Must not originate, induce.

H. Entrapment

“Bait car.” (TV Show)Nice car is “abandoned” in dicey neighborhood with engine running, keys left behind, as part of DUI, fight, etc.Outfitted with cameras, locks. Entrapment? (1) Originate the crime? Not really. (2) Induce? Well. . . (3) Predisposition? Depends.