In NY,  Def must raise the defense and meet burden of production by providing at least minimal evidence (to establish a reasonable doubt). Defs can raise multiple defenses.

At that point, prosecution must disprove defense and jury must be instructed to consider defense (for acquittal) even if judge disagrees. Dif jurisdictions have dif burdans of persuasion/proof.

Affirmative Defense

Def bears burden of production and persuasion

Defense

Def bears burden of production and prosecution must persuade

Complete defense to all criminal liability stemming from a course of conduct

Examples: Insanity, infancy

May lead to acquittal on one or more crimes but has no impact on others.

Examples:

Imperfect self-defense (reduces Murder charge to voluntary manslaughter)

Diminished Capacity (mental state = incapable of premeditation necessary for Murder 1st, still capable of criminal negligence)

Disprove one element necessary for crime

(usually mens rea)

Examples:

Intoxication

(Def argues to drunk to have required intent)

Mistake

(Someone takes umbrella thinking it's theirs, negates larceny)

Justification:

Def's behaivor met social expectations under the circumstances - negates moral blameworthiness.

e.g Self-defense, protection of property

Excuse

Def should not be held accountable

Infancy, Insanity, Duress

Assertion that Def was in a location other than where criminal act occured - must have witnesses testify about specific whereabouts (cannot be that he was was simply "not at the scene of the crime")

Most jurisdictions require pre-trial notice to prosecution of alibi defense.

Definition: Government inducement or instigation of a crime

Elements: Improper conduct that creates crime

1.  Action by govt agent

2  Inducement or persuasion

Requires: Gross conduct creating substantial risk that crime will be committed by someone not predisposed to do it – ordinary person

(If FBI offers you $1 million to steal a book, that’s gross conduct)

1) Actor believes

2)  Such force

3)  Immediately necessary

4)  For purpose of protecting oneself

5)  Against unlawful force    

Rejects reasonable person standard (NY Objective test for "under the circumstances) – MPC allows defense  when actor actually and honestly “believes that such force is immediately necessary” – doesn’t matter how reasonable belief was.

Use or Threat of Imminent Physical Harm

(for self-defense)

The force must be immediately present or threatened, not a fearful perception of possible harm.

"I'll be back later to beat you up" does not warrant physical force for self-defense.

Conditional statements can be sufficient

"Get out of here now or I'll hit you with this bat"

If attacker withdraws, right to self-defense ends.

Can reduce murder to voluntary manslaughter by meeting some elements of self-defense.

Example: Physical attack provokes heat of passion killing - negates malice aforethought for murder.

Happens in one of two situations 1) unreasonable belief of imminent threat or 2) unreasonable amount of force used

• Deadly force is more restricted (can only be used to prevent imminent death or serious bodily injury)
• Initial aggressor – usually denied right of self defense
• Imperfect Self-Defenset
• Usually reduces severity of sentence but does not relieve of liability
• Mutual Combat (Boxing match)
• Some jurisdictions require def to retreat before using deadly force (Unless at home or work – no duty to retreat, FL has “stand your ground” rule)

• Stand in the shoes/alter ego

• You may do what the person you rescue could do

• Whatever is reasonable for victim is reasonable for rescuer

• Prevailing standard is reasonable amount of force necessary to respond to unlawful force against third person – objective doesn’t care if mistaken belief

• MPC says honestly believes intervention is necessary under the circumstances

Based on person's subjective (actual and honest) belief in the necessity of such action.

Rejects alter ego and reasonable belief approaches

• More restrictions on defense of property than people
• Generally no deadly force to protect property only “moderate” force (unless protecting home)
  
• Standard is MPC = Honest Belief, NYPL = Reasonable to protect or recapture property

Law Enforcement Defense

(While making arrests, preventing escape)

o   Use of force not justifiable unless

          Reason for arrest is made known and

           Warrant is valid or believed to be valid

o   Use of deadly force not justifiable unless

       Arrest is for felony and

         The force creates no substantial risk to innocent persons

         Arrest involved use of deadly force

Private citizens can also arrest

Resisting Unlawful Arrest (dumb idea)

Use of force is almost never justifiable against an arresting officer (even if arrest is unlawful).

Only if there is excessive use of force might self-defense apply.

"Choice of evils" Defense

Example: Must commit crime in order to survive (stranded hiker breaks into home)

Harm avoided by breaking law must be greater than harm caused by breaking law.

Exception/defense when officer exceeds speed limit in pursuit, when executioner makes lethal injection, military order.

Airport screeners – not assault unless their touching is unreasonable

Exceptions: Killing unarmed prisoner is murder

Discipline Based on Relationship Defense

(Spanking)

o   Another lesser evil defense

o   Must commit crime while under threat w/ no other options such as escape (eg. at gun point)

Must include threat of immediate physical harm that would overcome the will of a person with "reasonable firmness"

You cannot recklessly place yourself in a situation of duress (walk into a drug smuggling operation)

• Cannot adequately participate in proceeding
• Unable to understand proceedings and assist in defense
• No Trial - def released or sent to mental institution (until regaining competence)
  

Complete defense to criminal liability by negating moral blameworthiness (lacks free will or volition to be held responsible). Must notify prosecution of defense and court will conduct expert evaluation.

 MPC Test: Lack of substantial capacity to appreciate the wrongfulness or capacity to conform (irresistable impulse).

Can be found "Not Guilty by Reason of Insantiy" (GBMI) and sent to mental hospital

Where defendant has a mental defect that does not meet test for insanity. Not available everywhere.

Partial defense, only works for some crimes where the mens rea can be negated by this defense... can weaken Murder to manslaughter but does not free from liability.

Can negate actus reus (act was not voluntary) or mens rea (could not form intent). Can be evidence or mental defect for instanity defense.

MPC allows this defense to negate mens rea, but does not free from liability for reckless behavior.

Example: drunk driver still guilty of reckless homicide

Can negate mens rea.

I took your umbrella thinking it was mine.

or

The law defining the offense isn't known to the defendant and hasn't been published or made reasonably known to the defendant prior to the conduct in question

 Some states have age requirements whereas younger children lack the capacity to understand the wrongfulness of crimes

Usually under 18 can reduce sentance, and under 10 will be complete defense to criminal responsibility.