Crim Question

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bowging1
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Crim Question

Postby bowging1 » Sun Apr 25, 2010 10:20 am

Assuming D is not reckless/negligent in putting himself in the situation, can a justification or excuse (necessity/self-defense/duress/insanity) be a defense to a strict liability offense?

270910
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Re: Crim Question

Postby 270910 » Sun Apr 25, 2010 11:32 am

bowging1 wrote:Assuming D is not reckless/negligent in putting himself in the situation, can a justification or excuse (necessity/self-defense/duress/insanity) be a defense to a strict liability offense?


Hard to speak in generalizations, but most justifications/excuses work by negating mens rea. Strict liability offenses require no mens rea. QED...

For the most part, this is kind of an absurd question because it is impossible to come up. Self defense is a defense to murder/assault/battery - none of which are ever strict liability*

Duress and statutory rape could be interesting. The statute really doesn't leave room for it, but duress is an affirmative defense. Even though the formulation of duress is predicated on it negating mens rea, that's not how the test/defense usually works, so under the right circumstances it is at least conceivable that duress could beat statutory rape. But it's not very likely...

Keep in mind that outside of statutory rape and circumstance elements, almost nothing is strict liability. Also keep in mind that for circumstance elements, duress will still beat the charge because intent is often required for other elements of the crime.

*ok ok, felony murder. But a fact pattern that implicates a justification/excuse as a defense to felony murder would be really out there.

nickwar
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Re: Crim Question

Postby nickwar » Sun Apr 25, 2010 11:51 am

I believe this question can be answered by referencing the best movie ever -- Point Break.

In Point Break, Keanu Reeves plays an undercover cop who is forced (through proper duress) to participate in an armed robbery. During this robbery, an off-duty officer is killed by one of the other robbers -- disguised as Richard Nixon -- while trying to thwart the theft.

Technically, Keanu Reeves committed felony murder; someone was killed during the commission of a violent felony (I'm assuming armed robbery is listed in California's felony-murder statute.)

However, although Keanu Reeves is briefly handcuffed by police following the robbery, his partner (played by Gary Busey), knowing full well the duress defense, uncuffs him and Keanu is shortly thereafter jumping out of a plane without a parachute.

In short, the duress defense seems to negate the underlying felony (armed robbery), so I assume a death that occurs would be negated too for the purpose of the felony murder doctrine.

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Aeroplane
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Re: Crim Question

Postby Aeroplane » Sun Apr 25, 2010 11:56 am

Although duress & necessity can be philosophically framed as negating mens rea, my professor taught that they're not element-negating defenses anymore (the old view was that they negate free will & therefore mens rea but not today), but affirmative defenses to a substantive offense which has been committed. They can surely be applied to SL crimes as much as any other. It's hard to picture a fact pattern where statutory rape could have a viable necessity defense, but if a 12-year old held a gun to your head to rape you, I think you'd have a solid duress defense to statutory rape for having sex w/him or her.

Less weird examples: speeding & DUI are both strict liability offenses, but I'm sure if you got drunk and passed out at home and someone broke in, woke you up, held a gun to your head and made you drive them somewhere, you'd have a perfectly good duress defense. Or if you were fleeing a tornado coming your way, you'd have a good necessity defense to speeding.

The only times our professor explicitly posited necessity as mens-rea-negating were (1) when the required mens rea is recklessness/negligence and so compelling reasons for taking a risk are actually relevant to proving the element of recklessness/negligence. E.g. performing a surgery with only 30% chance of survival on someone who will die shortly otherwise is not reckless or negligent, and (2) when a particularly specific mental state beyond "intent" is required, e.g. someone racist holds a gun to your head to make you shoot a minority. The duress would be no defense to a murder charge, but would negate the specific "hate" intent required for a hate-crime.

sbalive
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Re: Crim Question

Postby sbalive » Sun Apr 25, 2010 12:28 pm

nickwar wrote:I believe this question can be answered by referencing the best movie ever -- Point Break.

In Point Break, Keanu Reeves plays an undercover cop who is forced (through proper duress) to participate in an armed robbery. During this robbery, an off-duty officer is killed by one of the other robbers -- disguised as Richard Nixon -- while trying to thwart the theft.

Technically, Keanu Reeves committed felony murder; someone was killed during the commission of a violent felony (I'm assuming armed robbery is listed in California's felony-murder statute.)

However, although Keanu Reeves is briefly handcuffed by police following the robbery, his partner (played by Gary Busey), knowing full well the duress defense, uncuffs him and Keanu is shortly thereafter jumping out of a plane without a parachute.

In short, the duress defense seems to negate the underlying felony (armed robbery), so I assume a death that occurs would be negated too for the purpose of the felony murder doctrine.


In California, perhaps. Elsewhere, possibly not. (Also, if it is allowed, it's usually not because it "negates" the underlying felony, since you usually don't have to be guilty or even charged with the felony, unless I'm missing some jurisdiction-specific detail.)

This might be useful:
http://www.law.northwestern.edu/jclc/ba ... nkland.pdf

As for strict liability crimes that do not involve murder or serious injury, it seems that duress and necessity are allowed, but not self-defense (I found a case where distinguishing self-defense and duress was important).




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