1. Street Law Ch. 11: The Criminal Defenses

2. Ch. 11 Part 1: No Crime Committed Key Terms Alibi

3. Ch. 11 Part 1: Why Do I Need To Know This? 1.Because in the event you are investigated for a crime you did not commit, you will need to know how to prove your innocence. 2.Because there may come a time when you will have to do things that are questionable and you will want to know if you have a legal defense for doing so. 3.Because if you want to make a valid argument, you need to know how to present a defense to a case.

4. Criminal Defenses In our criminal justice system, the prosecutor must prove his or her case beyond a reasonable doubt. As a result, the defendant can raise many defenses to try and create a reasonable doubt in the mind of the jury about whether or not s/he is guilty. –It is up to the jury whether or not to believe either the prosecutor or the defendant.

5. Criminal Defenses The defense attorney must raise all defenses at once or else will lose the ability to use the defense. –As a result, the defense attorney will often offer many alternatives for the jury to believe. –Although this may sound like doublespeak, this is what the defense attorney must do to protect his or her client. –In legalese, it is perfectly acceptable to say that “my client didn’t do it, and if he did do it, there was a good reason for it.”

6. Criminal Defenses There are 4 main lines of defense that a defense attorney can use. They are: 1.No crime has been committed. 2.The defendant committed the crime, but the act was excused or justified. 3.The defendant committed the crime, but is not criminally responsible for his act. 4.The victim approved of the crime. The defense attorney will argue these defenses in order because each defense becomes harder to prove –Also, if the defense uses the 2 nd, 3 rd, or 4 th line of defense, it is admitting to the crime.

7. No Crime Has Been Committed This is the “I didn’t Do It” defense. The defense can prove that no crime was committed in 3 ways: 1.Providing an Alibi 2.Evidence 3.Disproving an element to the crime Alibis are not all that convincing because people have been known to lie. –When an alibi is introduced, the credibility of the witness is always in question. Evidence, specifically DNA or photographic evidence is the best method to disprove a crime. If the defense can disprove any one of the elements of the crime, then the defendant is not guilty of that specific crime.

8. Ch. 11 Part 2: The Defendant Committed the Crime But Is Not Criminally Responsible for His/Her Actions Key Terms Infancy Intoxication Insanity Defense Incompetency

9. Ch. 11 Part 2: Why Do I Need To Know This? 1.Because there are times when you may have to do things that are illegal and you have a good reason for doing them, so you will want to know whether or not you will go to jail for your actions. 2.Because making a proper defense argument requires that you know and understand the limits to the argument. 3.Because you may need to work with a criminal defense attorney and will want to be able to assist in your defense.

10. The Defendant Is Not Responsible Because the defendant’s intent and state of mind are elements to most crimes, there are several defenses that try to capitalize on the fact that people should not be held criminally responsible for their actions. Also, there are times when a person may think s/he did something wrong, when in fact, did not, and as a result, should not be held criminally responsible for his/her acts. The most reasons why a person would not be held criminally responsible for his/her acts are: 1.Infancy 2.Intoxication 3.Insanity/Incompetency 4.Mistake of Law 5.Mistake of Fact 6.Impossibility

11. Infancy There is a legal presumption that children under the age of 7 cannot form the intent to commit a crime. That is they do not sufficiently know the difference between right and wrong. There is a general rule that children between age 7 and 14 also generally cannot form the intent to commit a crime, but this can be rebutted by the prosecutor. Children over age 14 are held responsible for their crimes and can be punished. –If their crimes are heinous enough, the can even be tried as adults. Juveniles are given many protections under the law, and cannot be sentenced past their 25 th birthday. –Juveniles go to separate courts that are not as formal as traditional courts. –At age 18, a juvenile’s record will be sealed by the court.

12. Intoxication The defense of intoxication refers to a person who is so drunk or under the influence of a substance that s/he did not know what s/he was doing at the time of the crime. There are 2 types of intoxication defenses. They are: 1.Voluntary Intoxication 2.Involuntary Intoxication

13. Voluntary Intoxication Voluntary Intoxication occurs when s/he becomes intoxicated of his/her own free will. –However, you cannot get yourself intoxicated to establish the defense. Voluntary Intoxication is only a valid defense against specific intent crimes. –However, most specific intents can form in a split second, so if the plan is hatched before the intoxication, this is not a valid defense. It is not a valid defense against: 1.General Intent Crimes 2.Crimes of Malice 3.Crimes of Recklessness 4.Strict Liability Crimes 5.Crimes of Negligence

14. Involuntary Intoxication Involuntary intoxication occurs when the intoxicating substance is consumed: 1.Without knowledge of its nature; 2.Under duress from another person; 3.Pursuant to medical advice and unaware of its intoxicating effects. Involuntary intoxication is treated like an insanity defense.

15. Insanity Insanity is a very rare defense. All criminals are presumed to be sane, and must raise this defense at the trial on their own. In order to win an insanity defense, the defendant must prove to the jury that: 1.The defendant suffered a defect of the mind, 2.That at the time of the crime caused the defendant to: 1.Not know the difference between right and wrong; or 2.Conform his conduct to the law. In California, there is a separate hearing to determine insanity separate from the trial to determine guilt. Once a person is found not guilty by reason of insanity, s/he will be held in a civil confinement until such time as s/he is no longer a threat or danger to society. –This can be longer than the criminal sentence!!!

16. Incompetency Related to insanity is incompetency. –Incompetency is when a person is so mentally disabled that s/he does not understand the legal proceedings being brought against him/her or cannot assist the lawyer in his/her defense. –All defendants are generally assumed to be competent. A person who is incompetent will be held in a civil confinement until such time as the s/he is no longer incompetent. –Once the person is released, s/he will immediately be tried for the original crime. In either case, the civil confinement can be longer than the original criminal sentence!!!!

17. Mistake of Law The general rule is ignorance of the law is NO excuse. –The only exception to this is when the law has never been published anywhere…which hasn’t happened in over 100 years. There is a related defense that is the reasonable reliance on a government official. –An example is a police officer directing traffic in a manner that would otherwise violate the law.

18. Mistake of Fact The mistake of fact can negate a specific intent crime. The mistake of fact must be reasonable, as determined by the jury. –An example would be taking another person’s I-Pod when you thought it was your own I-Pod. Mistake of fact is NOT a defense to any strict liability crime. –An example is when a person sees a fake ID and then sells a minor liquor.

19. Impossibility There are 2 types of impossibility. They are: –Factual Impossibility –Legal Impossibility In both cases, impossibility is raised as a defense only to attempted crimes. Factual impossibility refers to when it is physically impossible for the defendant to commit the crime. –An example would be trying to buy stolen goods from an undercover officer when the goods were never stolen. –This is not a valid defense to an attempted crime. Legal impossibility occurs when no law has been violated. –This is a valid defense to an attempted crime. –An example would trying to fish on a lake without a license, when the law does not require a fishing license on that lake.

20. Ch. 11 Part 3: The Defendant Committed the Crime But It Is Excused or Justified Key Terms Duress Necessity

21. Ch. 11 Part 3: Why Do I Need To Know This? 1.Because situations may arise that force you to do things that technically break the law. 2.Because you may have to defend yourself and you will need to know how much force you can legally use to do so. 3.Because you may need to defend others and will need to know how much force you can legally use to do so. 4.Because you may need to protect your property and will need to know how much force you may legally use to do so.

22. Excuses and Justifications Because there are times and situations that often go beyond a person’s ability to control, there are several excuses and justifications to crimes that are allowed by the law. The difference between an excuse and a justification is that society does not want to encourage excuses. –As a result, excuse defenses are not all that common or successful. Justifications are more common and successful because they are more understandable situations. The most common excuses and justifications are: 1.Duress 2.Necessity 3.Self Defense 4.Defense of Others 5.Defense of Property 6.Entrapment

23. Duress Duress is a justification that occurs when a person is under imminent physical harm or personal danger. –Duress may also occur when the threat of imminent harm is applied to a third person, such as a child or spouse. Duress is a defense to almost any crime except a homicide.

24. Necessity The defense of necessity is a justification that occurs when natural forces cause a situation that would result in a greater harm to society than the crime itself. –It is up to the jury to decide if the defendant’s actions were necessary, and they will use an objective test to determine that. Merely thinking that an action is necessary is not enough to make it necessary. –A defendant may take any reasonable action necessary except committing a homicide. In order to claim necessity, the defendant could not have caused the original harm.

25. Self Defense—Non Deadly Force Self defense is split along the lines of non-deadly force and the use of deadly force. Self defense can only be claimed for immediate threat of injury or harm—one cannot use force to prevent threats or future harms. A defendant may use any non- deadly force that appears to be reasonably necessary to defend himself. –What is or is not deadly force is a matter for the jury to decide. It is an objective test. A defendant does not need to retreat in order to use reasonable non-deadly force for self defense.

26. Self Defense—Deadly Force A person may only use deadly force for self defense when: 1.The defendant is without fault for causing the incident; AND 2.The defendant is confronted by unlawful force; AND 3.The defendant is threatened with imminent death or great bodily harm. Generally, a defendant does not need to retreat before using deadly force. –However, on the east coast, most states do require a defendant to retreat at any opportunity rather than use deadly force.

27. Self Defense—Deadly Force An aggressor can only use deadly force to defend himself when: 1.The defendant effectively withdraws from the fight and tells the victim of that; OR 2.The aggressor is confronted with sudden escalation of force and the aggressor cannot retreat. Most juries believe that there is almost ALWAYS a chance to retreat from a fight, especially one that the defendant started, so it is very rare that juries allow this to happen.

28. Defense of Others The general rule is that a defendant may use non- deadly force or deadly force to defend others who would otherwise have the ability to claim self defense. There generally does not need to be a special relationship between the defendant and the victim in order to use self defense. However, it is up to the jury to determine whether what the defendant did was reasonable or not.

29. Defense of Property In defending property, it all depends on the type of property being defended. The two most common categories for property are defense of a home and defense of other property. In a home, a defendant may use non deadly force to defend his home from an unlawful entry. –So if a person trespasses onto your property, you may use reasonable force to defend yourself. In the defendant’s home only, the defendant may use deadly force to prevent an imminent attack to prevent a violent felony from occurring in the home. –Some states still require a person to retreat if possible. Remember, you may never set traps to defend your home.

30. Defense of Property In defending any other property, deadly force may NEVER be used. Even if the property is in your physical possession at the time, such as a purse or wallet. A person may NEVER use any type of force to regain any property unless the defendant is in the immediate pursuit of the thief. –Going onto another person’s property to recover your property is considered by force, even if no one is there at the time. –If you need to recover property from someone, sue them in court and have the police help in the recovery. You can learn all about this in semester 2 of Street Law!!!

31. Entrapment Entrapment occurs when the police approach the defendant and propose criminal behavior to the person. It is only entrapment if the defendant was not predisposed to commit the crime. –Usually, for entrapment to work as a defense, the police need to apply pressure to the defendant on repeated occasions to commit the crime. Merely making the opportunity to commit a crime available to the defendant does not make it entrapment. –For example, if the police leave an unlocked car in a high crime area, that’s not entrapment.

32. Ch. 11 Part 4: The Defendant Committed the Crime But The Victim Forgives the Defendant Key Terms Consent Condonation

33. Ch. 11 Part 3: Why Do I Need To Know This? 1.Because in many crimes, especially rape, consent may be a defense. 2.Because many people believe that if they get the victim to feel sorry for the defendant than the crime should be forgiven.

34. Consent Consent is generally NO defense to a crime except for rape and minor assaults and batteries. In order for consent to be a valid defense, the defendant must prove that: 1.The consent was voluntarily and freely given by the victim; 2.The victim was legally capable of giving consent; 3.No fraud was used to obtain the consent. As a result, consent is no defense to statutory rape.

35. Condonation Condonation occurs when the victim forgives the defendant after the crime was committed. The general rule is that the condonation by the victim is NO DEFENSE to any crime. –Practically speaking, though, if the victim does not pursue the matter, the police and district attorney will not pursue the matter either. Also, the criminal acts by the victim or other people are NO defense to any crime.