DEFENCES TO CRIMES

DEFENCES NEGATING CRIMINAL CAPACITY

Defence Elements Applicability

Insanity Meet applicable insanity test ALL crimes

(M’Naghten, irresistible impulse,
Durham test, ALI/MPC test)

Voluntary Intoxication Voluntary and intentional intake Defence to specific intent

of a substance, known to be crimes, if intoxication prevents
intoxicating formation of required intent

Involuntary Intoxication Taking intoxicating substances Treated as a mental illness (apply

without knowledge of its nature, the insanity tests), could be a
under duress, or pursuant to defence to all crimes
medical advice

Infancy At common, children under age Common law: Under age 7,

14; under modern statutes, under
13 or 14
absolute defence to all crimes;
under 14, rebuttable presumption
of defence
Modern statutes: defence to adult
crimes, but may still be delinquent

Diminished Capacity As a result of mental defect, Most states with this defence limit
(Observed in some jurisdictions) short of insanity, defendant did this to specific intent crimes
not have the required mental
state to commit the crime

INSANITY

Burden of Proof Party Bearing Burden Rule

Traditional Rule Defendant Beyond a preponderance

MPC/Most States Prosecution Prove sanity beyond a reasonable doubt

Federal Court Defendant Prove insanity by clear and convincing evidence

A “not guilty” plea, or failing to invoke the insanity defence during the arraignment does not waive the
defence. However, at any point before the trial, if the defence is invoked, the defendant may not refuse a
pretrial psychiatric evaluation ordered by the judge.

Because of due process, a person must know what he is being charged, tried, convicted with, and
sentenced. But if the defendant has a mental illness that deprives him of his ability to understand the nature
of the proceedings brought against him or assist his lawyer in the preparation of his defence, the defendant
cannot be tried, convicted or sentenced.

In lieu of sentencing, the defendant is usually committed to a mental institution until the illness is cured.
However, the term of confinement may exceed the punishment term.

Insanity Category Also Called Description

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M’Naghten Rule Can’t know right Defendant can be acquitted, IF, there is:
from wrong or does ● A disease of the mind; that
not understand ● Caused a defect of reason;
actions ● Such that the defendant lacked the ability at the time of
his actions to either know the wrongfulness of his
actions; OR
● Understand the nature and quality of his actions

Irresistible Cannot refuse an Defendant is entitled to acquittal, only if, he was unable to
Impulse impulse control his actions or conform his conduct to the law

Durham Test Product test Defendant is entitled to acquittal, if the crime was the product
of the defendant’s mental illness
State differently, the crime would not been committed but for
the disease. This is essentially a test of causation

MPC or ALI Test M’Naghten plus Defendant is entitled to acquitted, if he had a mental disease
Irresistible Impulse of defect, and as a result, he lacked the substantial capacity
to either: (a) appreciate the criminality of his conduct; or (b)
conform his conduct to the requirements of the law

EXCULPATORY DEFENCES
Defence Applicability When Applicable

Justification Usually crimes of force Nondeadly force may usually be

(See the justification chart, infra) used if reasonably necessary to
avoid imminent injury or to
retain property; deadly force may
be used to prevent serious
bodily harm

Duress All crimes except intentional Defendant reasonably believed

homicide that another would imminently
harm him or a family member if
he did not commit the crime

Mistake of Fact Crimes with a mental state For specific intent crimes, any
element mistake that negates intent; for
(All crimes apart from strict other crimes, only reasonable
liability) mistakes

Mistake of Law Crimes with a mental state
element and statutory crimes
Mistake must negate awareness
of some aspect of law
regarding the elements of the
crime required or must be due
to:
(1) statute not reasonably
available;
(2) Reasonable reliance on
statute or judicial
interpretation; or
(3) Reasonable reliance on
official advice

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Consent
Entrapment
(Difficult to prove in real life;
usually a wrong answer choice if
the defendant has a criminal
disposition)
Crimes requiring lack of consent,
such as rape; minor assaults and
batteries
Most crimes, but not available if
the police merely provide the
opportunity to commit the crime
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Applicable only if consent is
freely given, the party has
capacity to consent, and was not
wrongfully induced by fraud
Criminal design originated with
the police and the defendant
was not predisposed to commit
the crime before contact with the
police
JUSTIFICATION DEFENCES
These defences usually apply when society has deemed the actor should not be punished because the
circumstances justify the actions. Justification defences, such as self defence, depends on the
immediacy of the threat. Force must be proportional:
Nondeadly force: justifiable where it is necessary to prevent imminent injury or to retain property
Deadly force: justifiable to avoid death or serious bodily injury
Nondeadly Force
(Requires actor’s reasonable
belief, unless otherwise stated)
Self Defence If necessary to protect self
Defence of Others If necessary to protect another
person
Defence of Home If necessary to prevent or end
unlawful entry
Defence of Other Property If the person reasonably believes
Preventing Crime If force is necessary to prevent
felony or serious breach of peace
Effectuating Arrest by Police If officer reasonably believes
force is necessary for arrest
Effectuating Arrest by Private If reasonable belief that someone
Person actually committed a crime in fact
Resisting Arrest If improper arrest
Necessity If reasonably necessary to avoid
greater harm
Deadly Force
Only if the person reasonably
believes that he is threatened
with death or great bodily harm
Only if the person reasonably
believes that another person is
threatened with death or great
bodily harm
Castle Defence Doctrine:
Only if the person inside
reasonably believes she is
threatened or prevent felony
inside
Never
Only to extent person believes
reasonably believes deadly force
is necessary to prevent or end
felony risking human life
Only to prevent escape of the
felon, and police officer
reasonably believes that the
suspect threatens death or great
bodily harm
Only to prevent escape of the
person actually committing a
felony, and person reasonably
believes that suspect threatens
death/great bodily harm
Only if improper arrest and
defendant does not know arrester
is a police officer
Never