1. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

2. ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Chapter 14 Common Law Defenses UNIT THREE: CRIMINAL LAW

3. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Introduction In every criminal trial the prosecution has the burden of proof and must prove the case against the defendant beyond a reasonable doubt. The defendant isn’t required to answer the charges except to plead not guilty or guilty. Every crime can be broken down into its essential elements. The government is required to prove each element beyond a reasonable doubt. The law provides legitimate defenses that, if proven, dictate an acquittal.  Justification Defenses Justification defense can be used where the commission of the proscribed act is justified and, therefore not appropriate for criminal sanctions.

4. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The justification defense most people are familiar with is self-defense in what would otherwise be a murder case. It is far from the only justification defense available. A person may always use non-deadly force to prevent an attacker from committing a crime against them. The use of deadly force is much more tightly controlled. Deadly force may only be used against an attacker who has initiated the aggression using unlawful force. A retreat rule has grown out of Common Law decisions through the years. The rule has two parts:  A person must retreat rather than use deadly force unless the person is at his or her home or business.  Most states have adopted the rule that there is not a duty to retreat unless the retreat can be made in complete safety. Aggressors can remove themselves from the fight. This is referred to as withdrawal.

5. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 If a fight that was not life-threatening suddenly becomes life-threatening, the initial aggressor can take whatever action is necessary to protect himself. Another Common Law defense is the defense of others. A defendant can use the defense of others defense when he acts in the belief the intended victim had a legal right to act in his or her own defense. Deadly force is permissible in the act of crime prevention if the crime is a serious felony that may endanger human life. A person may trespass on a property to save a person from imminent danger. In order for the necessity defense to work, the defendant must reasonably believe his or her action was necessary to avoid harm to society, which is greater than any harm caused to the property.

6. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Duress Defenses Defendants sometimes commit acts under duress and can then use the duress defense. Duress is a defense if the defendant committed the crime out of a well-grounded fear of death or serious bodily harm. The following conditions must be met for the duress defense to apply:  The actor was wrongfully threatened to perform an act that he or she otherwise would not have performed.  The threat was of serious bodily harm or death to the person or an immediate family member.  The threat was immediate and there was no way to escape or avoid the threatened action.  The harm threatened was greater that the harm from the crime committed.  The threatened person was not intentionally involved in the situation.

7. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Other Common Law Defenses The mistake of fact defense can be used when a defendant honestly believes something to be true that isn’t. The mistake of law defense can generally be used when a person in good faith relied on an interpretation of law from a person charged with administering the law. Entrapment is a defense used when law enforcement officials lure a person into committing a crime. Depending on the case law in your jurisdiction, one of two tests for predisposition are used.  Most jurisdictions use the subjective standard, also known as the majority rule.  Other jurisdictions use the objective standard or the minority rule. A defendant may use the victim’s consent as a defense in some circumstances.

8. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Capacity Defenses Capacity defenses may be used when the defendant lacks the capacity or ability to control his or her actions or understand that the act was criminal in nature.  Infancy Defense Debate rages about how to try minors who commit violent crimes. The Common Law standard for the infancy defense is as follows:  Children under 7 years are conclusively presumed to be incapable of knowing the wrongfulness of their crimes.  Children 7 to 14 years of age have a rebuttable presumption of incapacity.  Children over 14 were treated as adults and presumed to fully appreciate the difference between right and wrong.

9. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Intoxication Defense The intoxication defense is most successfully used in cases of involuntary intoxication. Voluntary intoxication may never be used as a defense to a general intent crime.  Insanity Courts have long wrestled with the concept of trying the mentally ill or handicapped.  Over the years, courts have recognized several defenses based on the defendant’s inability to distinguish right from wrong when committing a crimes. The most common of these defenses is insanity defense. The M’Naghten rule is that if a defendant at the time of the crime was “laboring under such a defect of reason, from diseases 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 that what he was doing was wrong,” no conviction is warranted.

10. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The burden of proof for the insanity defense is as follows:  Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to (the jury’s) satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved.  Beyond M’Naghten In 1886 Alabama adopted the more liberal “irresistible impulse” test. In effect, this created a “temporary insanity” for people who committed “crimes of passion.” M’Naghten was expanded even further in the 1954 Durham v. United States case, where the Court ruled that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”

11. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Under “guilty, but mentally ill” laws, defendants who do not meet the M’Naghten standard of a complete lack of capacity, but fall under the substantial lack of capacity standard, are convicted and sent to a mental hospital.  Competency to Stand Trial A variation on the insanity defense is to claim that the defendant is incompetent to stand trial. In recent years, older defendants have avoided trial temporarily or permanently due to their health condition.  Incapacity and Punishment In cases where the death penalty has already been imposed, convicts can postpone execution by claiming insanity just prior to execution.

12. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Practice Pointers Every criminal charge should be examined closely for the possibility of raising a defense to the charges.