EED 1. Was Defendant under EED? (Subjective)

EED 1. Was Defendant under EED? (Subjective) 2. Was there a reasonable explanation or excuse for EED? (Objective and subjective) • Necessity: • 1. Belief that conduct is necessary to avoid a greater harm (Subjective) • 2. Weighing of evils - Harm or evil avoided is greater than that sought to be prevented. • 3. Legislature has not precluded defense. • 4. Multi-tiered approach to blame issue. (Could support finding of negligent homicide)

Man. Man. No Settlement Minimum Sentence 5 yrs: Will serve one yr, with 4 yrs suspended (possibility of having sentence commuted) 5 Yrs. Deferred. Negotiation Results

Man. Man. No Settlement 5 Yrs probation 5 yr. Suspended Sentence Negotiation Results

Man. Neg. Hom. 7 Yr. Suspended Sentence 6 months in jail with intensive psych. Counseling, 6 months probation with monthly psych evaluations. Negotiation Results

Justification v. Excuse • Justification: Society deems that the defendant made the right choice and did the right thing under the circumstances of the case. • Excuse: Society does not condone the defendant’s conduct, but rather excuses it on the basis that he or she can not be held responsible for the conduct.

Toscano (p. 845) • Use or threat of harm to you or another • Present, imminent & pending • Induce a well-grounded apprehension of death or serious bodily harm (used to be just death) to a man of ordinary fortitude and courage • Not Reckless

Duress Defense • Whether the standard of reasonableness is subjective or objective. • Source of the threat. • Whether the threat should be imminent. • Whether the defense should be excluded for certain types of crimes (e.g. homicide). • Whether particular types of threats are required. • Whether the defendant should be free from fault.

Duress Defense • Whether the standard of reasonableness is subjective or objective. • Common Law: Reasonable fortitude • MPC: Reasonable firmness

Duress Defense • Source of the threat. • Most jurisdictions require that the source of the threat be another person.

Duress Defense • Whether the threat should be imminent. • Common Law: Present, imminent & Pending • MPC: ------------------

Duress Defense • Whether the defense should be excluded for certain types of crimes. • Common Law: Homicide (including felony murder?) • MPC: -------------------

Duress Defense • Whether particular types of threats are required. • Common Law: Death or serious bodily harm. • MPC: Unlawful force.

Duress Defense • Whether the defendant should be free from fault. • Common Law: Yes • MPC: Sort of. • Reckless: Defense is barred. • Negligence: Negligence Mens Rea

Definitions • Competency: • Person, as a result of a mental disease or defect lacks capacity to understand the proceedings against him/her or to assist in defense. • Execution: • Ford v. Wainwright (1986): bar on execution of insane. • Atkins v. Virginia (2002): bar on execution of the mentally retarded.

M’Naghten (p. 879) • Defect of reason or defect of mind; and • Did not know the nature of the act, or • Knowing the nature of the act, did not know that it was wrong. • Problems with test: • Complete impairment • Restriction to impairment of cognition • Artificial restriction on expert testimony

EED 1. Was Defendant under EED? (Subjective)