Law School Outlines - mitigation

MITIGATION NYPL Model Penal Code INTOXICATION (excuse) NOT a defense, but evidence of intoxication may be offered when it is relevant to negative an element of the crime (15.25) Same as NYPL, except if a) it is not self-induced, or b) is pathological, it is an affirmative D if as a result, at the time the actor lacks substantial capacity either to appreciate the wrongfulness of his act or to conform his conduct to the law. CANNOT negative recklessness, when actor is unaware of a risk b/c of voluntary intoxication. (2.08(1)(4)) MENTAL DEFECT (DIMINISHED CAPACITY) (excuse) Not available Relevant as evidence to prove that D did not have a state of mind which is an element of the defense. (4.02) EED (EXTREME EMOTIONAL DISTURBANCE) (mitigating factor) Mitigates 1st & 2nd degree murder to 1st degree manslaughter. Two parts: 1) D acted under influence of EED for which there was a reasonable explanation or excuse; 2) D's act is reasonable from the viewpoint of a person in the D's situation under the circumstances as he believed them to be. (125.25(1)(a)) Same as NYPL, except D acted under influence of extreme emotional or mental disturbance. (210.3(b)) DEFENSES Burden of proof: Defense: When a defense, other than an affirmative defense, is raised at trial, the prosecution has the burden of disproving such defense beyond a reasonable doubt. Affirmative defense: When defense is declared by statute to be an affirmative defense, the defendant has the burden of establishing such dfense by a preponderance of the evidence. DURESS (excuse) Affirmative defense. Imminent use or threat ened unlawful, physical force upon D or a third person which a person of reasonable firmness in his situation would be unable to resist. Unavailable if D recklessly or intentionally places himself in that position. (40.00) Affirmative defense. Same as NYPL. Also, unavailable if D was negligent in placing himself in situation. Force neither has to be physical, nor imminent. (2.09) ENTRAPMENT (excuse) Affirmative defense. Induced or encouraged by public servant to commit crime, in order for public servant to gain evidence against him. Methods used were such that there is a substantial risk that act would be committed by a person not otherwise disposed to commit it. Active inducement. Affording someone an opportunity to commit act is NOT entrapment. (40.05) Affirmative defense. Same as NYPL. Also, public official knowingly makes false representations designed to induce the belief that conduct was not prohibited. Unavailable is causing or threatening bodily injury is an element of the crime. (2.13) RENUNCIATION (where D's guilt is dependent on his criminal liability for another's conduct. Exception -attempt) Affirmative defense. Voluntary and complete renunciation of criminal purpose. D withdrew from participation prior to commission of offense and made substantial effort to prevent its commission. Note: not voluntary or complete if D decides not to act because he thinks he will get caught, or if he decides to postpone crime or transfer similar effort to another victim. Facilitation (115) -same as above. Attempt (110.00) -D must also prevent the commission of the crime. Soliciation (100) or conspiracy (105) -crime must not be committed, and D must have prevented the commission. (40.10) Affirmative defense. Same as NYPL. For attempt, your accomplice can still be guilty if he didn't renounce. (5.01(4)) MENTAL DISEASE OR DEFECT INSANITY (excuse) Affirmative defense. As result of mental disease or defect, D lacked substantial capacity to know or appreciate 1) nature and consequences of conduct; 2) that such conduct was wrong. Close to M'Naghten. (40.15) Affirmative defense. As result of mental disease or defect, D lacked substantial capacity to 1) appreciate the criminality (wrongfulness) of his conduct (cognitive element); or to 2) conform his conduct to the requirements of the law (volitional prong -"irres. impulse). (4.01) NECESSITY/CHOICE OF EVILS (justification) Judge decides if facts, if established, would constitute this defense. Act is necessary as emergency measure to avoid imminent public or private injury. Harm or evil to be avoided must outweigh injury sought to be avoided by statute, according to a person of ordinary intelligence and morality. Requires a faultless D. (35.05(2)). Affirmative defense. Same as NYPL. Unavailable if D is reckless or negligent in causing the situation requiring a choice of evils or if legislative exclusion of justification defense plainly appears. No imminency requirement. (3.02) MISTAKE OF FACT Factual mistake must negate the culpable mental state of the statute, statute must provide that factual mistake is a defense, or mistake must support defense of justification. Mistake of child's age is never a defense. (15.20) Mistake must negative mens rea of a material element of the offense, or law must provide that state of mind established by ignorance is a defense. Unavailable if D would be guilty of another offense had the situation been as he supposed, but charge will be mitigated to that offense. (2.04(1)(2)) MISTAKE OF LAW Belief must be based on official statement of the law. (15.20(2)) Same as mistake of fact above. Also, affirmative defense if belief based on official statement of the law, or statute is not known to D and has not been made publicly or reasonably available. (2.04) SELF-DEFENSE (PERSON) (justification) Can use physical force to extent you think reasonably necessary to defend yourself or another from what you reasonably believe to be use or imminent use of unlawful physical force by another. Unavailable if 1) you provoked the other's conduct with intent to cause physical injury; 2) you are the initial aggressor, unless you've withdrawn and communicated that; 3) physical force product of combat by agreement unauthorized by law. Can use deadly force when you reasonably believe 1) deadly force is about to used on you; 2) other person is committing or attempting kidnapping, forcible rape or sodomy, robbery, or a burglary (35.20(3)). Unavailable if you know you can retreat w/complete safety. No duty to retreat in your home and not the initial aggressor, or a cop or someone assisting one. (35.15) Same as NYPL, but doesn't mention burglary, robbery, or sodomy for use of deadly force. For the protection of another, that person must be justified in using the same protective force, and you think your intervention is necessary. Also, duty to retreat includes giving up a possession or abstaining from act you have no duty to take. No duty to retreat from place of work, unless you are attacked by a coworrker * You only have to believe force to be necessary under the circumstances as you believe them to be; belief does not have to be reasonable. However, if your belief is unfounded, you may be liable for negligent or reckless homicide. (3.04) DEFENSE OF PROPERTY/PREMISES (justification) Can use reasonable physical force to prevent/stop crime involving damage to premises or if you are the owner or an officer, a trespass onto the premises. Can use deadly force to prevent arson, or if you are the owner or a police officer, in the course of an attempted burglary, arson of your premises or building/dwelling. (35.20) Same as NYPL. Can only use deadly force if other is attempting to illegally dispossess him of his dwelling, or to prevent commission of arson, burglary, robbery or felonious theft when the other has either used or threatened deadly force or not using deadly force would expose you or another to serious bodily harm. (3.06) JUSTIFICATION FOR FORCE IN LAW ENFORCEMENT NYPL 35.30 MPC 3.07