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Defenses Outline

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I. II.

Ignorance/Mistake of Fact a. Rule i. Ignorance or a mistake of fact

1. (MPC) a. is a defense if i. it negatives culpability, or ii. a statute says that state of mind established by ignorance would be a defense (SS 2.04(1)). b. is NOT a defense if i. D would be guilty of another offense even if the situation had been as supposed (SS 2.04(2)).

2. (CL) a. is a defense if i. it negatives culpability, b. is NOT a defense if i. the crime is a moral wrong (Olsen). b. Analysis i. Moral wrong?

1. Generally applies to sexual conduct with minors, but not necessarily statutory rape (Olsen).

2. Even though it is problematic, most states accept it unless statutes provide otherwise. (Garnett). ii. Sexual assault / statutory rape?

1. (MPC) a. a mistake of age is a defense, unless the child was under 10 (SS 213.6(1)).

2. (CL) a. a mistake of age may be a defense, but probably is not (Olsen). c. Cases i. P. v. Olsen (Cal. 1984, 239)

1. D was invited to have sex with 13-year-old girl. Prosecuted for "willfully" engaging in sexual contact with someone under 14. Since public policy behind statute would not be served if mistake of fact was a defense, D is still guilty even if he thought she was 16.

2. (Dissent): D did not commit any criminal conduct if he did not honestly know she was under 14; plus, strict liability is usually restricted to public welfare laws. ii. Garnett v. S. (Md. 1993, 245)

1. Retarded D had sex with 13 y/o, who later gave birth to a child, in violation of a statutory rape law. Mistake is irrelevant. iii. Squib

1. P. v. Hernandez (Cal.) a. D's good faith belief that girl was older than 18 is defense for statutory rape.

2. P. v. Lopez (Cal.) a. D violated statute by selling marijuana to minor, but did not know buyer was a minor. Mistake is not a defense.

Ignorance/Mistake of Law a. Rule i. Ignorance of the law is no excuse, unless

1. (MPC) a. the ignorance negatives the culpability (SS 2.04); b. the definition of the offense says otherwise (SS 2.02(9)); or c. D reasonably believes the conduct does not constitute an offense because: i. the statute has not yet been published; ii. official reliance (SS 2.04(3)).

2. (CL) a. (majority) i. the ignorance is of legal circumstance rather than governing law (Smith)

1. but see a. Woods re: legal circumstance, and b. Lambert re: governing law. ii. the statute says otherwise (Fox).

b. b.


III. Analysis i. Ignorance of the law?

1. Three types of ignorance: ignorance of governing law, ignorance of legal circumstance, and mistake of fact.

2. E.g. if it was illegal to sleep in same bed as married man, and A slept in same bed as married B: a. ignorance of governing law: A did not know of law; i. (MPC)/(CL): no excuse

1. with a tiny exception: Lambert. b. ignorance of legal circumstance: A did not know B was legally considered married; i. (MPC)

1. excuse. ii. (CL)

1. (some): excuse (Smith).

2. (others) no excuse (Woods). c. mistake of fact: A did not know she slept in same bed as B. i. (MPC)/(CL): excuse. ii. Official reliance?

1. If D relies on an erroneous: a. publication of statute; b. judicial or official interpretation of someone like the attorney general (SS

2.04(3)); i. or governmental commission (Raley). iii. Judicial interpretation?

1. Potential criminals may rely on a court's latest ruling (Albertini) but

2. Ds rely on the ruling at their peril if a judgment's reversal is reasonably foreseeable (Rodgers). Cases i. S. v. Fox (Idaho 1993, AM 35)

1. D bought asthma drug, but did not know it was controlled substance in Idaho. Since ignorance of the law is no excuse, no mens rea with regard to law is required for D to be culpable. ii. R. v. Smith (Eng. 1974, 273)

1. D made a mistake of legal circumstance when he ripped out floorboards he had installed into rented apartment. Since he honestly thought they were his own, not culpable. iii. Squibs

1. S. v. Woods (Vt. 1935) a. D married man after he divorced wife in Nev. D did not know divorce was not legal in Vt. Violated "Blanket Act" which criminalized sleeping with married man. No excuse.

2. Hopkins v. S. (Md. 1950) a. D, who knew of law, erected sign based on bad advice of State's Attorney. No excuse.

3. Raley v. Ohio (U.S. 1959) a. D not guilty of violating state law that governmental commission had said was open to him, since this would be "entrapment by estoppel."

4. U.S. v. Albertini (9th Cir. 1987) a. D protested on military base after 9th Circuit said it was constitutional. SCOTUS reversed, and D was prosecuted for protest. This would be "entrapment" by government.

5. U.S. v. Rogers (U.S. 1984) a. Since the existence of conflicting cases in circuit courts made a review by SCOTUS against a D's position reasonably foreseeable, official reliance is no excuse.

6. Lambert v. Cal. (U.S. 1957) a. Kansas D was convicted for not registering herself in Cal. for a crime that would be a felony in Cal., but which was not a felony in Kansas. Overturned.

Intoxication a. Rule

(New Jersey) i. official reliance, where D diligently pursued all means available to determine whether conduct was legal.



c. IV.


1. 2.

Intoxication is a defense when it negatives culpability (SS 2.08(1)), unless the relevant distinction is between recklessness and negligence, e.g. in homicide cases (SS 2.08(2)).

Analysis i. Intoxicated Homicide?

1. When recklessness is the element, D's unawareness due to voluntary intoxication is immaterial (MPC SS 2.08(2)). a. Unlike PK, R is less about a requisite mental state; if knowledge of danger is widespread and there is no social value to getting intoxicated, no need to give drunk killers lenity (S. v. Dufield (N.H. 1988)).

2. Drunk driving murders typically require actual knowledge of high degree of risk of death (Fleming). a. Actual knowledge may be inferred because D was told (Pears), or just because
Ds should know that driving while drunk is grossly reckless (Watson). Cases i. See, infra, at Depraved Heart Murder.

Duress a. Rule

i. (MPC)

1. 2.

ii. b.


1. It is an excuse if D was coerced to act by the use of or threat to use unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist, unless a. D recklessly placed himself in a situation where duress was probable, or b. D negligently placed himself in a situation where duress was probable, if negligence suffices to establish the culpability for the offense charged (SS 2.09). Duress is an excuse only when there is an imminent threat or a well-grounded apprehension of SBI or death (Toscano).

Analysis i. MPC v. CL?

1. MPC only requires that a normal person would be unable to resist a threat of unlawful force.

2. CL requires an imminent threat of serious force, which the MPC regards as too restrictive. ii. Coerced to act?

1. (MPC) a. This includes murder.

2. (CL) a. (Mich. and vast majority) i. This does not include murder, since D might kill thousands to save family (Abbot v. Queen (Eng. 1976). b. (Ill.) i. Among types of murder, this includes only felony murder. c. (I.C.T.Y.) i. For soldier, may include downgrade to manslaughter (Prosecutor v. Erdemovic (I.C.T.Y. 1997)). iii. Unlawful force?

1. Force, including confinement, which would constitute an actionable tort or offense (MPC SS 3.11(1)). iv. A person of reasonable firmness in his situation?

1. This is a question of fact (Toscano).

2. This is a semi-objective standard: objective person in subjective situation: a. in regard to "person of reasonable firmness": i. low IQ is not admissible to modify objective aspect (U.S. v. Johnson (6th Cir. 2005)). b. in regard to "in his situation": i. retardation is admissible to modify "situation" (C. v. DeMarco (Pa. 2002)), ii. as is multiple personality disorder, since this would make threat more compelling (Zelenak v. C. (Va. Ct. App. 1996)), but

1. (some)


2. 3.

v. vi.


Cases i.

ii. V.

Consent a. Rule i.

(others) a. BWS is admissible re: duress (S. v. Williams (Wash. 1997). (MPC) a. BWS may modify whether D recklessly placed self in situation of being forced into sex w/ stepson (S. v. B.H. (N.J. 2005)).


1. Right now. See, infra, at Necessity, Self-Defense.

2. Does not include a sure death in the future (Fleming). Recklessly placed himself . . . ?

1. D who enters gang cannot use the defense (R. v. Sharp (Eng. 1987)), unless a. gang had no reaon to expect to be involved in trouble and D believed he could leave (R. v. Shepherd (Eng. 1987). S. v. Toscano (N.J. 1977, 833)

1. D claimed duress for fraud because the organizer threatened his wife's life in the future. Even though this threat was not imminent, a person of reasonable firmness would have been unable to resist. U.S. v. Fleming (C.M.R. 1957)

1. D, captured soldier, responded to threat of "walk" during Korean War by collaborating with enemy. Since the walk was not immediate death, nor was the threat one of death, NO duress.


1. 2. b.


VI. BWS is not admissible re: duress (U.S. v. Willis (5th Cir. 1990).

Analysis i. Serious?

1. Generally applies to violent crimes like aggravated assault or homicide, but not assault or rape. ii. Legally incompetent?

1. Examples: youth, mental disease, intoxication, or induced by force, duress, or deception. Cases i. C. v. Malone (Pa. 1946, 426)

1. D shot friend playing Russian Roulette. Even though he did not intend to kill him and victim consented, depraved heart murder. ii. See, infra, at Rape.

Entrapment a. Rule i. (MPC)

1. ii.


Consent of the victim to an offense is an excuse if such consent negatives an element of the offense, or a. the harm consented to is not serious; b. the conduct is part of a competitive sport; unless a. it is given by a person who is legally incompetent to authorize the conduct (SS 2.11).


1. A public law enforcement official or someone operating on their behalf who induces or encourages another person to engage in an offense perpetuates entrapment if: a. she makes knowingly false representations designed to induce the belief that such conduct is not prohibited, or b. she creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it (SS 2.13). A public law official commits entrapment if: a. official induces D to act, and b. D is not "predisposed" to do so (Jacobson).

Analysis i. Predisposed?

1. (majority)

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