Defenses Outline

SECTION FIVE: DEFENSES

Part One: Excuses

1. @Ignorance/Mistake of Fact

   1. Rule

      1. Ignorance or a mistake of fact

         1. (MPC)

            1. is a defense if

               1. it negatives culpability, or

               2. a statute says that state of mind established by ignorance would be a defense (§2.04(1)).

            2. is NOT a defense if

               1. Δ would be guilty of another offense even if the situation had been as supposed (§2.04(2)).

         2. (CL)

            1. is a defense if

               1. it negatives culpability,

            2. is NOT a defense if

               1. the crime is a moral wrong (Olsen).

   2. Analysis

      1. 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).

      2. Sexual assault / statutory rape?

         1. (MPC)

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

         2. (CL)

            1. a mistake of age may be a defense, but probably is not (Olsen).

   3. Cases

      1. P. v. Olsen (Cal. 1984, 239)

         1. Δ 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, Δ is still guilty even if he thought she was 16.

         2. (Dissent): Δ 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.

      2. Garnett v. S. (Md. 1993, 245)

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

      3. Squib

         1. P. v. Hernandez (Cal.)

            1. Δ’s good faith belief that girl was older than 18 is defense for statutory rape.

         2. P. v. Lopez (Cal.)

            1. Δ violated statute by selling marijuana to minor, but did not know buyer was a minor. Mistake is not a defense.

2. @Ignorance/Mistake of Law

   1. Rule

      1. Ignorance of the law is no excuse, unless

         1. (MPC)

            1. the ignorance negatives the culpability (§ 2.04);

            2. the definition of the offense says otherwise (§ 2.02(9)); or

            3. Δ reasonably believes the conduct does not constitute an offense because:

               1. the statute has not yet been published;

               2. official reliance (§ 2.04(3)).

         2. (CL)

            1. (majority)

               1. the ignorance is of legal circumstance rather than governing law (Smith)

                  1. but see

                     1. Woods re: legal circumstance, and

                     2. Lambert re: governing law.

               2. the statute says otherwise (Fox).

            2. (New Jersey)

               1. official reliance, where Δ diligently pursued all means available to determine whether conduct was legal.

   2. Analysis

      1. 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:

            1. ignorance of governing law: A did not know of law;

               1. (MPC)/(CL): no excuse

                  1. with a tiny exception: Lambert.

            2. ignorance of legal circumstance: A did not know B was legally considered married;

               1. (MPC)

                  1. excuse.

               2. (CL)

                  1. (some): excuse (Smith).

                  2. (others) no excuse (Woods).

            3. mistake of fact: A did not know she slept in same bed as B.

               1. (MPC)/(CL): excuse.

      2. Official reliance?

         1. If Δ relies on an erroneous:

            1. publication of statute;

            2. judicial or official interpretation of someone like the attorney general (§ 2.04(3));

               1. or governmental commission (Raley).

      3. Judicial interpretation?

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

         2. Δs rely on the ruling at their peril if a judgment’s reversal is reasonably foreseeable (Rodgers).

   3. Cases

      1. S. v. Fox (Idaho 1993, AM 35)

         1. Δ 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 Δ to be culpable.

      2. R. v. Smith (Eng. 1974, 273)

         1. Δ 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.

      3. Squibs

         1. S. v. Woods (Vt. 1935)

            1. Δ married man after he divorced wife in Nev. Δ 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)

            1. Δ, who knew of law, erected sign based on bad advice of State’s Attorney. No excuse.

         3. Raley v. Ohio (U.S. 1959)

            1. Δ 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)

            1. Δ protested on military base after 9th Circuit said it was constitutional. SCOTUS reversed, and Δ was prosecuted for protest. This would be “entrapment” by government.

         5. U.S. v. Rogers (U.S. 1984)

            1. Since the existence of conflicting cases in circuit courts made a review by SCOTUS against a Δ’s position reasonably foreseeable, official reliance is no excuse.

         6. Lambert v. Cal. (U.S. 1957)

            1. Kansas Δ 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.

3. @Intoxication

   1. Rule

      1. (MPC)

         1. Intoxication is a defense when it negatives culpability (§2.08(1)), unless

         2. the relevant distinction is between recklessness and negligence, e.g. in homicide cases (§2.08(2)).

   2. Analysis

      1. Intoxicated Homicide?

         1. When recklessness is the element, Δ’s unawareness due to voluntary intoxication is immaterial (MPC §2.08(2)).

            1. 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).

            1. Actual knowledge may be inferred because Δ was told (Pears), or just because Δs should know that driving while drunk is grossly reckless (Watson).

   3. Cases

      1. See, infra, at Depraved Heart Murder.

4. @Duress

   1. Rule

      1. (MPC)

         1. It is an excuse if Δ was coerced to act by the use of or threat to use unlawful force against...

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