Note: you can use Deadly force on some kinds of underlying crimes : kidnapping, rape, murder, arson, armed robbery, highjacking.
Cases:
- TN v. Garner - TN 1985 Cops have less power against fleeing felons
- Police officer shot at fleeing burglar after B&E
- Rule: Only allowed if officer has probable cause that ∆ is dangerous
- “Balancing of interests”= interest to effectuate arrest/interest to live
- Holding: Civil case against officer confirmed; this was unreasonable force
- Dissent: O’Connor: Says burglaries are dangerous crime; in the balancing of interests, she sees the test as coming out in favor of the officer. Burden should be on π to show that the officer knew that the victim wasn’t dangerous
Duress and Necessity NOTE: DURESS CANNOT BE USED AS A DEFENSE FOR A PURPOSEFUL KILLING.
- Traditionally separate defenses (though now largely interchangeable)
- Duress caused by another person
- Necessity caused by events
Duress and Necessity:
- So long as the defendant’s perception (of fear) is reasonable, he should be allowed to argue the defense
- If there is a reasonable alternative to committing a crime, it should be taken
- There is an element of imminence: when the claimed duress loses its coercive force, the ∆ must cease committing the alleged offense
- Duress is no defense for killing another person: if your life is threatened and you have the option to be saved by killing an innocent person, you ought to die before doing so.
- Issue of a seaman throwing others overboard to save himself following a disaster at sea
- The defense cannot be invoked if they are put in that situation by their own reckless decision: ex: joining a gang
- Even if evidence is insufficient to establish defense: can b used to mitigate sent.
- Necessity: Moreso about physical conditions that lead to the commission of a crime, whereas duress more so about threat of force from a person
- While common law typically distinguished between the two defenses, modern courts minimize the difference between them.
- Financial necessity is not an allowed defense: Sorry Jean val Jean
- BUT: some courts allow for medical necessity in MJ cases
Cases:
- State v. Metcalf - OH Ct. App. 1977
- Issue: can be defense of duress for non-homicidal crimes be predicated on the fear of safety for OTHERS? (∆ claimed scared for family bc undercover threatening)
- Rule: Used law of necessity for analysis (which does allow it): Defense can be invoked when ∆ fears for others (especially family)
- US v. Bailey - SCOTUS 1980
- Four prisoners escaped bc bad conditions at jail; necessity/duress?
- If duress/necessity invoked to escape; stops being in force the second they are in safety = should have turned themselves in
- Dissent: it never lost coercive force, they would have been sent back.
- State v. Warshow
- Demonstrators against nuclear plant; argued necessity
- Rule: impending harm for necessity must be imminent + reasonable certain to occur
- Concurrence: can’t be necessity if it is a state-sanctioned activity
- Dissent: it wasn’t ab overall environmental risk but turning the plant back on (inside knowledge it might blow)
Entrapment Notes:
- US only country in world to have this as a true defense; didn’t come from common law
- Comes from Justice Brandize: gov’t overreach on prohibition issues
- ½ states follow Supreme Ct rule on it, others follow own rules (only ½ have codified)
Subjective Test - SCOTUS + 30 states - Focusing on ∆- were they predisposed to commit the crime
- Focus on moment before inducement
- Jury decides
- Problem: includes proof of priors + associations
| Objective Test - MPC view (20 bigger states) - Did the gov’t go to far
- Did the gov’t engage in conduct to encourage an individual to commit crime
- Judge decides
- Problem: ppl say it disregards culpability of ∆
|
Notes:
- There is also a combo option: Judge decides as matter of law if entrapment (with obj) standard, then if he says no, it goes to jury to decide (with sub. standard)
- Inducement = merely “offering an opportunity” not sufficient; must be repeated offerings, money, sexy, using pity, force, threat
- In some states, (AZ) you must admit to crime to use entrapment (Uncons. Per Marcus)
- There are cases where entrapment so bad, it violates due process (doesn’t matter what their pre-dispo was) : Sup Ct never heard one, only a dozen nationwide
Cases:
- Sherman v. United States - Scotus 1958
- Narcotic addict persuaded to sell to another he met at clinic; other was an informant; got ∆ back on drugs as well
- Rule: entrapment when criminal conduct is creation of law enforcement and ∆ would not have otherwise done the act
- Entrapment here absolutely
- Concurring opinions: argue for objective test (but agree in result)
- United States v. Russell - SCOTUS 1973
- Manufacturing speed; undercover provided him w/ nec ingredient one of the times; ∆ plead entrapment
- Rule: only when gov’t deception implants the criminal design= entrapment
- Here, not entrapment: he did it before, and did it after
- Dissent: by supplying ingredient, gov’t became party to crime (this is BAD)
- Other dissent: focus on objective rule
- Jacobson v. United States - SCOTUS 1992
- Last time SCOTUS has heard case on entrapment
- Rule: accused must be predisposed to commit crime; state didn’t prove that here
Intoxication Involuntary Toxication - True Defense
- Yes, I committed those crimes, but someone drugged me
- NO Jury instruction
| Voluntary Toxication - Not a true defense
- ∆ only proving gov’t failure to meet mental req (FOP)
- Juries hate it as a defense
|
Notes:
- ⅓ ⅓ ⅓ split on evidence of intoxication (admitted or not)
- Some say admitted only if necessary
- Others say never
- Some say evidence in some cases
- Forget ab general/specific intent
- States are split about intoxication: prevailing view is there should be restrictions, but it is a mixed bag
Cases:
- Heideman v. United States - DC Cir. 1958
- ∆ and friend rob and assault cab driver; claims intox
- Court rules it should have been admitted to jury (wrong) bc reasonable person could question if he had the intent necessary
- Dissent: Burger says it shouldn’t have (right!) but its for wrong reasons
- State v. Stasio - NJ 1979
- Says purpose and knowledge can be negated by voluntary intoxication, but recklessness and negligence cannot (bc they don’t need specific intent)
- Refer to it as a defense, which it isn’t, but whatever
Insanity Notes:
- Very serious circumstances compared to those sentenced normally
- Only ¼ of the 1% of defenses raised are successful
- Comes up at three times
- Competency to stand trial - very low standard (do they have general idea of what is going on?)
- Insanity at time of crime- what we focus on
- Death penalty
- Almost none go free
- Deals with culpability: belief is if insane= diminished culpability
Procedure:
- Trial is bifurcated proceeding
- 1st: Did they do it
- 2nd: are they insane
- In some states, they are automatically transferred to state facility
- Others, it is determined by a judge, prosecutor, family members
- If in facility- no sentence cap: just until lo longer threat to society
M’Naghten’s Case:
- Rule: Did the accused, at the time, know the difference between right and wrong
- Was moved away from until Reagan’s attempted assassination
- Still leading majority rule (30 states + Feds)
- Criticism
- All or nothing
- Focus is on cognition (right and wrong) and not volition
Irresistible Impulse Test:
- In response to criticism: creation of this test
- Released from liability if they couldnt’ control themselves
MPC - tried to fix this:
- “Substantial capacity” over all or nothing (M’Naughten) test
- Focus on volition + Cognition
Insanity Defense Reform Act:
- Threw out MPC definition
- Burden of proof goes to ∆, clear and convincing evidence
- And Experts cannot testify as to the issue of ∆’s insanity
- Back to M’Naughten
Insanity as a Failure of Proof?
- Can be FoP: ∆ doesn’t want to raise the issue of insanity as a defense, but says that diminished capacity means gov’t can’t prove intent
- In some states, allowed: it it works, they walk
- If not, they go to regular jail (big issue)
- Other states: if you are raising the issue: needs to be Insanity Defense: they can be found NG, but they will still be put away.
Experts
- First must establish credentials
- What can that expert testify to: What is X mental disorder; Was this person suffering delusions; they can educate jury about condition
- They cannot: diagnose person (depending on judge); say that that person was unable to decide right/wrong (jury issue)
Burden of Proof: Usually on ∆ to prove insanity (by preponderance or clear and convincing