Chapter 8- Factual and Statutory Defenses

AFFIRMATIVE DEFENSES
- A defense that is more than a simple denial of the charges, it brings up a new matter that
may result in an acquittal or reduction of liability
o Usually must be raised before trial
o Ex: questions of defendants mental state, self-defense, and alibis
- Prosecution usually bears burden of proof: must show that weight of evidence is on their
side
o However, defendants must raise all affirmative defenses and produce evidence to
support the defense: burden of production
Dont have to convince factfinder that defense is valid, just must establish
it
o Defendant must then meet burden of persuasion after burden of production
Burden of persuasion: requirement that the evidence is on their side, not
just in the balance
Only required in some states
INSANITY
- Mens rea defense
- An insane person is unable to form a rational purpose or intent
- Diminished capacity: the principle that having a certain recognized form of diminished
mental capacity while committing a crime should lead to the imposition of a lesser
punishment or to lower the degree of the crime
- Each jurisdiction is free to use any test to determine insanity
MNaghten insanity test
- At the time the act was committed, the defendant was suffering from a defect of reason,
from a disease of the mind, which caused the defendant to not know the nature and
quality of the act taken or that the act was wrong
Irresistible Impulse
- Addition to the MNaghten test
- A defendant is not guilty by reason of insanity if a disease of the mind caused the
defendant to be unable to control his or her behavior, even if they understood the nature
and quality of the act or knew the behavior was wrong
Durham Test
- Requires acquittal if the defendant would not have committed the crime if he or she had
not been suffering from a mental disease or defect at the time of the act
- Not used by any jurisdiction today
MPC Test (substantial capacity test)
- A person is not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law
- Only requires substantial impairment, not total impairment like in MNaghten

Guilty but Mentally Ill

- A person who timely offers a defense of insanity in accordance with the Rules of
Criminal Procedure may be found guilty but not mentally ill at trial if the trier of facts
finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill
at the time of the commission of the offense and was not legally insane at the time of the
commission of the offense
- Defendant sentenced like any other offender, but also provided with mental health
treatment
Procedures of the Insanity Defense
- Notice must be provided to the court that it will be used as a defense
- Psychiatric examination required as part of testimony
- Defendant bears burden of production, must present enough evidence to create some
doubt of sanity
o States split on burden of persuasion
Disposition of the Criminally Insane
- After defendant has been not guilty because of insanity, the court determines if they are
still dangerous
o Yes, they are committed for treatment, but often not given any because of high
cost
Judge determines danger, not doctor
o No, they are released
Insanity at the Time of Trial
- One insane at time of trial may not be tried
- Defendant must be rational, possess the ability to testify coherently, and be able to
meaningfully discuss their case with their lawyers
- If insane they are committed until competent
o Lengthy detention is considered punishment and violated Due Process
Must be a separate finding of dangerousness to continue to hold them
o If defendant becomes incompetent during trial there is to be a mistrial
Sentenced to psychiatric facility
- If person becomes insane after sentenced to death, execution cant take place until sanity
is regained
DURESS AND NECESSITY
- Defense of duress: one was threatened and that the threat caused a reasonable belief that
the only way of avoiding serious personal injury to oneself or others was to commit the
crime
o Must be shown a threat was made
o Threat must create a reasonable fear of injury or death
Even if person making threat had no intention of following through,
defense can still be valid
Threat must be serious bodily harm or death, not something like a smack
Threat must be imminent or immediate
o Murder is not justified by duress

o Cant be used to claim one was carrying out order of a superior, like employer or
military superior
Necessity: a situation that requires an action that would otherwise be illegal or expose a
person to a tort liability
o Has 2 choices, chooses that which causes the least amount of harm
o Broad concept
Both duress and necessity are complete defenses: require acquittal when found

USE-OF-FORCE DEFENSES
- Justifying using physical force against others
Self-Defense
- The actor was confronted with an unprovoked, immediate threat of bodily harm that force
was necessary to avoid the harm, and that the amount of force used was reasonable.
- Initiating attack on another doesnt let you use self defense
o Unless attacker is met with excessive force in return
o Or if attacker withdraws from the attack and is pursued by the intended victim
- Threat of harm must be immediate
o Battered woman syndrome: a woman who is constantly abused by her spouse or
lover can use physical force at a time when there isnt strictly immediate danger
Only some jurisdictions
- Force must be reasonable
o Deadly force can only be used if there is threat of serious bodily injury or death
- Retreat doctrine: Person must retreat from an attack if possible before using deadly force
o Not required if it were to pose a danger
o Also requires one comply with anothers demands before using deadly force
Defense of Others
- Must be threat of immediate danger to the other person, the perception of threat must be
reasonable, the amount of force used must be reasonable and deadly force may be used
only to repel a deadly attack
Defense of Property and Habitation
- One must have a reasonable belief that the property is threatened, only reasonable force
may be used to protect the property, and other nonviolent remedies must be utilized
before resorting to force
- MPC allows deadly force to protect habitation if intruder is attempting to unlawfully take
the dwelling or if the intruder is intending to commit a crime
Imperfect Self-Defense
- Mens rea defense
- Applies when person cant make reasonable self-defense claim
- Killing should be manslaughter and not murder b/c there was no malice aforethought
- Also when a person who initiates an attack with non-deadly force must use deadly force
to then defend themselves
Arrests
Resisting Unlawful Arrests
- People can use force to resist an unlawful arrest in some states
- Nondeadly force allowed, however, they will be responsible for resulting crime
- However, today most jurisdictions dont allow resistance to any arrest

Arrests by Law Enforcement Officers

- Officers can use reasonable force to apprehend criminals and prevent those incarcerated
from escaping
- Need not be shown that the person posed a danger to the police, just has to be shown that
force was reasonable
Arrests by Citizens
- Some jurisdictions allow citizens to arrest a person if probable cause exists that they
committed a felony (no misdemeanors)
- Provides citizens who arrested civil and criminal immunity
- Some allow use of deadly force
INFANCY
- Common to give juvenile courts exclusive jurisdiction over criminal behavior of
juveniles
- Differ on cut off ages
- Purpose is to reform delinquent children, not punish them
INTOXICATION
- All situations in which a persons mental or physical abilities are impaired by drugs or
alcohol
- Only a defense in some jurisdictions
- Can prevent defendant from forming premeditation, deliberation, or purposeful element
of a murder
- Involuntary intoxication relieves defendant of reliability entirely
o Has to be shown it had same effect as insanity
MISTAKE
- One may believe that some act is legal when it is not: mistake of law
- A person may not understand all the facts of a given situation: mistake of fact
o Defense when it negates the mens rea of a crime
o Except in strict liability crimes where there is no mens rea
- Generally, mistake of fact is a defense, mistake of law is not
- If a lawyer advises a client that a particular act is legal when it is not, client will be liable
for act if taken
ENTRAPMENT
- When law enforcement officers encourage another to commit a crime with the intent of
arresting and prosecuting that person for the commission of that crime
- Jurisdictions vary in how the defense is structured
- Subjective test: tries to distinguish b/w those who are predisposed to commit crime from
those who arent
o defendant is predisposed if he or she is ready to commit the crime and only
waiting for opportunity

Objective test: asks whether the police conduct created a substantial risk that an offense
will be committed by persons other than those who are ready to commit it
- In many states it cant be used to defend against crimes involving violence to people
ALIBI AND CONSENT
Alibi: defendant claims they were not present at the scene of the crime at the time it was
committed
- Affirmative defense and must be stated before trial, however, government still has burden
of proof beyond reasonable doubt
Consent: defense in crimes such as rape or larceny
- If there is consent, there was no crime
o However, not defense in statutory rape, battery, murder, etc.
STATUTES OF LIMITATION
- Federal and state statutes prescribing the max period of time during which various types
of civil actions and criminal prosecutions can be brought after the occurrence of the
injury or the offense
- Serious crimes like murder have no limitation
- In case of lesser included offenses, when lesser offense runs out of time, defendant can
only be found of higher offense or acquitted