GENERAL DEFENSES TO CRIMES

GENERAL DEFENSES TO CRIMES:
- Defenses: must be raised by D. Once raised by minimally sufficient evidence, they must be
disproved by P BARD. This burden is slight, requires no actual proof. If there’s evidence that
any reasonable juror could believe, even if the judge doesn’t believe it, most States judges
must instruct jurors on the defense and tell them that the burden is on P to disprove it BARD.
If there’s no evidence of a defense, however, the jury won’t be instructed about it.
- True defense: adds another element to the case, one that D must raise and support (D bears
burden of production).
o Justification defense: admits commission of offense’s elements, but argues that doing so
wasn’t wrong in this case. Are based on societal decisions about what we find
acceptable. Ex. self-defense, defense of property, defense of habitation, defense of others,
law enforcement defenses, necessity. Better.
o Excuse defenses: admits commission of offense’s elements, but argues that D wasn’t
responsible for his actions for some reason. The conduct isn’t justified under the law,
but is excused b/c Ds decision-making ability was impaired. Ex. insanity, some cases of
intoxication, duress, certain types of mistakes of fact or law. Not-as-good.
- Affirmative defenses: Depend on facts independent of the crime elements, don’t disprove
the elements. D bears burden of production and persuasion, must convince the jury by a
preponderance that each necessary fact is present. Under MPC, only arises where there’s
evidence supporting it. Ex. emotional disturbance (see Patterson).
- Offense modifications: apply to specific crimes rather than all crimes. Include special defenses
available in many jurisdictions for preparatory crimes like attempt or conspiracy. Ex. renouncing
the attempt or conspiracy is a defense to those crimes, but doesn’t furnish a defense to crimes
across the board.
- Partial defenses: may reduce a charge (ex. from M to MS). Ex. provocation, diminished capacity.
- Extrinsic defenses (aka non-exculpatory public policy defenses): neither justifications nor
excuses, but still may furnish a defense based on public policy. Ex. SOL, executive or diplomatic
immunity.