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Criminal Law - 2021 Outline - Part 6

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Prevention of Crime

Note: you can use Deadly force on some kinds of underlying crimes : kidnapping, rape, murder, arson, armed robbery, highjacking.


  • 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


  • 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


  • 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)


  • 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 ∆


  • 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


  • 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

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


  • 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


  • 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


  • 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


  • 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:

  1. Threw out MPC definition
  2. Burden of proof goes to ∆, clear and convincing evidence
  3. And Experts cannot testify as to the issue of ∆’s insanity
  4. 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.


  1. First must establish credentials
  2. What can that expert testify to: What is X mental disorder; Was this person suffering delusions; they can educate jury about condition
  3. 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

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