Chapter 7 Notes: Parties and Inchoate Offenses
Parties to Crimes:
• Those who participate in a crime are referred to as parties.
• At common law, there were four parties to crimes: principals
in the first degree; principals in the second degree;
accessories before the fact; and accessories after the fact.
• A principal in the first degree is the participant who actually
committed the proscribed act. OR The Main Person
• A principle is the person who aids, counsels, assists, or
encourages the principal in the first degree during
commission of the crime. A party must be present
during a crime to be a principal in the second degree.
• First-degree and second-degree principals are punished
equally. Principals in the second degree are also referred to as
accomplices, as are accessories before the fact.
• Anyone who aids, counsels, encourages, or assists in the
preparation of a crime, but is not physically present during
the crime, is an accessory before the fact.
• The primary distinction between a principal in the
second degree and an accessory before the fact is the
lack of presence during the crime of an accessory
before the fact. At common law, accessories could not
be convicted until the principals were convicted.
• The mens rea of an accomplice (before and during a crime)
is usually intentional (specific) in common-law terms, or
knowing or purposeful in Model Penal Code language.
• The mental state required to prove that a person was an
accessory after the fact is twofold: It must be shown
first that the defendant was aware of the person’s
criminal status (scienter) and second that the defendant
intended to hinder attempts to arrest or prosecute the
criminal.
•Accessories after the fact continue to be treated differently. A
person is an accessory after the fact if
• (1) aid, comfort, or shelter is provided to a criminal
• (2) with the purpose of assisting the criminal in avoiding arrest or prosecution
• (3) after the crime is committed
• (4) and the accessory was not present during commission of the crime. D is an
accessory after the fact, if A and B flee to D’s house and D hides A and B from
the police.
• Uncompleted crimes are referred to as inchoate crimes.
Inchoate Crimes: Law enforcement officials would have no incentive to
intervene in a criminal enterprise before it is completed. By punishing
attempt, conspiracy, and solicitation, an officer may prevent a planned
criminal act from occurring without risking losing a criminal conviction.
•Attempt: An effort to commit a crime that goes beyond
preparation and that proceeds far enough to make the person who
did it guilty of an “attempt crime.” For example, if a person fires a
shot at another in a failed effort at murder, the person is guilty of
attempted murder.
• The purpose of attempt laws is to deter people from planning
to commit crimes; to punish those who intended to commit a
crime, but were unsuccessful; and to encourage law
enforcement officers to prevent unlawful activity.
• There are essentially three elements to all attempts. One, the
defendant must intend to commit a crime. Two, the defendant
must act in furtherance of that intent. Three, the crime is not
completed.
•The first mens rea element is the defendant must intend
to take an act of crime knowingly and purposefully.
• The second element is actus reus. How close to
completion of the intended crime must a defendant
come to be guilty of attempt? It is well established that
thoughts alone do not establish a crime; mere
preparation without anything further does not amount to
the crime of attempt.
• Various tests are used to determine if an act is close
enough to completion to permit an attempt conviction.
The four commonly used tests are proximity, res ipsa
loquitur, probable desistance, and the Model Penal
Code’s “substantial steps” test.
•proximity test examines what acts have been
taken and what acts are left to be taken to
complete the crime.
•res ipsa loquitur test (also called the
unequivocality test) looks at crimes individually
and finds an act, a certain point in time, which
indicates that the defendant has “no other purpose
than the commission of that specific crime.”
•probable desistance, focuses on the likelihood
that the defendant would have followed through
with the crime had the opportunity existed. But
that there is a point where most stop. Any person
who passes this line of demarcation has exhibited
that the crime would have been completed, had
the situation permitted.
• The Model Penal Code uses a substantial step to
completion test. That is, one is guilty of attempt if
substantial steps have been taken toward
commission of a crime. The Code specifically
states that the conduct in question must “strongly
corroborate” the actor’s criminal purpose. The
Code goes further and lists acts that may
constitute attempts, provided that they “strongly
corroborate” an intent to commit a crime. That list
includes:
• Lying in wait or searching for the intended victim.
• Enticing or seeking to entice the intended victim to
go to the place where the crime will be committed.
• Investigating the location where the crime is to be
committed.
• Unlawfully entering a structure where the crime is
to be committed.
• Possession of materials necessary to complete the
crime, provided that the tools are specially
designed for the commission of the crime.
• Possession, collection, or fabrication of materials
to be used in the crime, near the scene of the
crime, when the materials serve no lawful purpose.
• Soliciting someone to commit a crime.
• Regardless of which test is applied, if a defendant has a
change of heart and does not complete the crime, even
after crossing the line, abandonment may be a valid
defense.
• Two other defenses that arise in the context of attempt
are legal and factual impossibility. Legal impossibility
refers to the situation when a defendant believes that his
or her acts are illegal when they are not.
•Legal impossibility: A person who is unable to
commit a crime because of legal impossibility
cannot be convicted of a crime he or she intends
or attempts.
•Conspiracy:
Conspiracy is
• (1) an agreement
• (2) between two or more persons
• (3) to commit an unlawful act or a lawful act in an unlawful manner.
• Naturally, a conspiracy requires more than one person who must join
in the agreement. One limitation on this rule is the concert of action
rule. (Wharton’s Rule). Under this rule, two people cannot be
charged with conspiracy when the underlying offense itself requires
two people. For example, gambling is a crime that requires the acts of
at least two people. Wharton’s Rule prohibits convictions of both
gambling and conspiracy. Adultery and incest are other examples.
This is not true of murder, as murder can be committed by one person.
Wharton’s Rule is limited, however, to two people. So if three people
agree to gamble, a conviction of gambling and conspiracy to commit
gambling is permitted.
•concert of action rule: The rule that, unless a statute specifies
otherwise, it is not a conspiracy for two persons to agree to
commit a crime if the definition of the crime itself requires the
participation of two or more persons. Also called Wharton Rule
and concerted action rule.
•The mens rea of conspiracy has two aspects. First, conspirators
must have an intent to enter into an agreement. Second,
conspirators must possess a specific intent to commit some
unlawful objective. That objective must be to commit an
unlawful act or a lawful act in an unlawful manner.
• The mens rea requirement of conspiracy is strict. Contrary to
the general rule, mistake of law and fact are often accepted
defenses. It is a defense for a party to have been under the
mistaken belief that the group’s actions and objectives were
legal. This is because the conspiracy must be corrupt; the
parties must have had an evil purpose for their union.
• A procedural irregularity is the co-conspirator hearsay rule.
Hearsay is an out-of-court statement. Although hearsay
evidence is normally inadmissible at trial, the co-conspirator
exception permits the statements of one party that are made out
of court to be admitted. The rule is limited to statements made
during planning and commission of the conspiracy; statements
made after it is completed are inadmissible.
•co-conspirator hearsay rule: The principle that
statements by a member of a proven conspiracy may be
used as evidence against any of the members of the
conspiracy.
•Hearsay: A statement about what someone else said (or
wrote or otherwise communicated). Hearsay evidence is
evidence, concerning what someone said outside of a
court proceeding, that is -offered in the proceeding to
prove the truth of what was said. The hearsay rule bars
the admission of hearsay as evidence to prove the
hearsay’s truth unless allowed by a hearsay exception.
•Solicitation: You have already encountered solicitation in the
discussion of prostitution. But solicitation is much broader than
attempting to engage someone in prostitution. Solicitation is the
• (1) encouraging, requesting, or commanding
• (2) of another
• (3) to commit a crime.
• The crime is different from attempt, because the solicitation itself is a crime,
and no act to further the crime need be taken
Chapter 8 Notes: Factual and Statutory Defenses
Defense “Defined”: Criminal defendants usually claim that they are
innocent of the charges against them. A defendant’s reason for asserting
that he is innocent is called a defense.
Many defenses have been developed under the common law; however,
many others have been created by legislation. Finally, some defenses
find their origin in the constitutions of the states and federal government.
Some defenses are complete (perfect); that is, if they are successful, the
defendant goes free. Other defenses are partial; the defendant avoids
liability on one charge but may be convicted of a lesser offense.
Affirmative Defenses: A defense that is more than a simple denial of the
charges. It raises a new matter that may result in an acquittal or a
reduction of liability. It is a defense that must be affirmatively raised,
often before trial or it is lost.
• The defendants mental state to commit a crime (insanity,
intoxication, ect.)
•Whether the crime was justified or excused (self defense)
•Or an alibi
• As a general rule, criminal defendants may sit passively during
trial, as the prosecution bears the burden of proving the
government’s allegations. Burden of proof refers to refers to two
burdens, the burden of production and the burden of persuasion.
• It is the defendants duty to rise all affirmative defenses. At
trial defendants must produce some evidence to suuport the
defense. This is known as burden of production. Burden of
production is the requirement that one side in a lawsuit
produce evidence on a particular issue or risk losing on that
issue.
• After defendants have met the burden of production, the burden
of persuasion then must be met. Defendants must prove this by a
preponderance of evidence or some jurisdiction require proof
beyond a reasonable doubt.
• Some of the defenses covered in this chapter are affirmative
defenses. It is necessary to research local law to determine which
procedure is followed in a particular jurisdiction and what defenses
are considered “affirmative”.
Insanity: diminished capacity: the principle that having a certain
recognized form of diminished mental capacity while committing a
crime should lead to the imposition of a lesser punishment or to
lowering the degree of the crime.
Something that must be remembered is that criminal law has its own
definition of insanity. Other areas of law (e.g., civil commitment) use
different tests, as do other professions (e.g., psychiatry). Each
jurisdiction is free to use whatever test it wishes to determine insanity.
Three tests are used to determine sanity in the criminal law context:
M’Naghten; irresistible impulse; and the Model Penal Code. A fourth
test, the Durham, is no longer used in any jurisdiction but is mentioned
because of its historical significance.
•M’Naghten: In 1843 Daniel M’Naghten killed the British prime
minister secretary believeing it was him. He was tried and found
not guilty because he believed the prime minister was trying to kill
him. The M’Naghten rule is also referred to as the M’Naghten test
or the right-wrong test.
• At the time that the act was committed
• the defendant was suffering from a defect of reason, from a disease of
the mind, that caused
• the defendant to not know
• the nature and quality of the act taken or
• that the act was wrong.
•Irresistible Impulse: Under the M’Naghten test, defendants who
knew that their actions were wrong, but could not control their
behavior because of a disease of the mind, are not insane. *unable
to control their behavior. Irresistible impulse: The loss of control
due to insanity that is so great that a person cannot stop from
committing a crime.
•Durham: Generally, the Durham rule requires an acquittal if
defendants would not have committed the crime if they had not
been suffering from a mental disease or mental defect. Durham
rules is defendants are not guilty of a crime because of insanity if
they were “suffering from a disease or defective mental condition
at the time of the act and there was a causal connection between
the condition and the act.”
•The Model Penal Code Test: The Code is similar to M’Naghten
in that it requires that mental disease or defect impair a defendant’s
ability to appreciate the wrongfulness of his or her act.
•The Code’s approach differs from the M’Naghten and
irresistible impulse test in two important regards: First, the
Code requires only substantial impairment, whereas
M’Naghten requires total impairment of the ability to know
the nature or wrongfulness of the act. Second, the Code uses
the term appreciate, rather than know. The drafters of the
Code clearly intended more than knowledge, and, as such,
evidence concerning the defendant’s personality and
emotional state are relevant.
•Guilty But Mentally I11 (GBMI): Unlike a defendant who is not
guilty by reason of insanity, a defendant who is GBMI is both
punished and treated. The defendant is sentenced as any other
offender for the crime, but in addition the state provides mental
health treatment.
•Procedures of Insanity Defense: Defendants must provide notice
to the court and government that insanity will be used as a defense
at trial. These statutes usually require that the notice be filed a
certain number of days before trial. This notice provides the
prosecution with an opportunity to prepare to rebut the defense
prior to trial.
• Psychiatric examination of defendants is necessary. The
judge presiding over the case will appoint a psychiatrist or
psychologist, who will conduct the exam and make the
findings available to the judge. Often defendants wish to
have a psychiatrist of their own choosing perform an
examination. This is not a problem if the defendant can
afford to pay for the service. In the case of indigent
defendants who desire an independent mental examination,
statutes often provide reimbursement from the government
for independent mental examinations up to a stated
maximum. In the federal system, trial courts may approve up
to in defense-related services. Defendants who seek
reimbursement for greater expenses must receive approval
from the chief judge of the circuit.
•Disposition of the Criminally Insane: Contrary to popular belief,
those adjudged insane by a criminal proceeding are not
immediately and automatically released. In most jurisdictions, after
a defendant has been determined “not guilty by reason of insanity,”
the court (the jury in a few states) must make a determination of
whether the person continues to be dangerous. If so, commitment
is to be ordered. If the defendant is determined not to be
dangerous, then release follows. A few jurisdictions have followed
the Model Penal Code approach, which requires automatic
commitment following a finding of not guilty by reason of
insanity. This is the rule in the federal system.
• Once a committed person is no longer a danger, release is
granted. The determination of dangerousness is left to the
judge, not hospital administrators or mental health
professionals—an often-criticized practice. Patients, doctors,
government officials, and even the judge can begin the
process of release. Some states provide for periodic reviews
of the patient’s status in order to determine the propriety of
release.
• Finally, some states have a “guilty but mentally ill” verdict.
Juries may return such a verdict when the defendant’s illness
does not rise to the level of negating culpability but treatment
should be provided in addition to incarceration.
•Insanity at the Time of Trial: The United States Supreme Court
has held that a defendant who is insane at the time of trial may not
be tried. The Court found that the Due Process Clauses of the Fifth
and Fourteenth Amendments require that defendants be able to
assist in their defense and understand the proceeding against them.
• Insanity exists when defendants lack the capacity to
understand the proceedings or assist in their defense.
• This simply means that defendants must be rational, possess
the ability to testify coherently, and be able to meaningfully
discuss their cases with their lawyers. The burden of
establishing incompetence is placed on the defendant in
many jurisdictions. While this procedure comports with due
process, requiring the defendant to establish incompetence by
clear and convincing evidence does not.
• * If defendants are unable to stand trial because they are
insane, they are usually committed until they are competent.
Many statutes have mandatory commitment of defendants
determined incompetent to stand trial. However, indefinite
confinement is unconstitutional, based solely upon a finding
of incompetence to stand trial. Generally, the Supreme Court
has held that a lengthy (18 months or longer) detention
(awaiting competence to stand trial) is tantamount to
punishment and violative of the Due Process Clause. In such
cases, there must be a separate finding of dangerousness to
continue to hold such persons.
• A mistrial is to be declared in the event that a defendant
becomes incompetent during a trial, and defendants who are
sane at trial but become insane before sentencing should be
sentenced to a psychiatric facility.
• Supreme Court has held that a person who has become insane
after being sentenced to death may not be executed until his
or her sanity is regained. Court has held that mentally
retarded individuals may not be executed.
Duress and Necessity: Duress and necessity are complete defenses.
When valid, they result in acquittal of all related charges.
•Duress is unlawful pressure on what a person would not otherwise
have done. It includes force, threats of violence, physical restraint,
etc.Legal defense must prove (1) that he or she was threatened (2)
and that the threat caused a reasonable belief (3) that the only way
of avoiding serious personal injury or death to oneself or others (4)
was to commit the crime. Duress was recognized at common law
and continues to be a statutory defense today.
•Necessity is similar to duress. However, whereas duress is created
by human pressures, necessity comes about by natural forces.
Often refers to a situation that requires an action that would
otherwise be illegal or expose a person to tort liability to avoid
harm or death.
Use-of-Force Defenses: All states permit the use physical force against
others in specific circumstances. Self-defense, defense of others, defense
of property, and use of force to make arrests fall into this area. Self-
defense, defense of others, and defense of property, when successful, are
complete defenses. Imperfect self-defense (including defense of another)
does not lead to acquittal; however, it does reduce murder to
manslaughter.
•Self-Defense: To prove Self Defense it must be shown that the
actor: (1) was confronted with an unprovoked, (2) immediate threat
of bodily harm, (3) that force was necessary to avoid the harm, (4)
and that the amount of force used was reasonable.
• his principle is occasionally stretched. For example, some
jurisdictions have permitted a jury to be instructed on the
battered woman syndrome defense.
•battered woman syndrome: Continuing abuse of a
woman by a spouse or lover, and the resulting physical
or psychological harm.
•Defense of Others:
•Defense of Property and Habitation:
•Imperfect Self Defense:
•Arrests: Sometimes it is necessary for law enforcement officers to
use force to execute their duties and to defend themselves. Bcause
the use of force is an integral part of law enforcement, it is often
justified. However, a person making an arrest does not have an
unlimited right to use force against an arrestee. This section
examines a person’s right to resist an unlawful arrest, the so-called
citizen’s arrest, and arrests by law enforcement officers.
• The amount of force is usually limited to nondeadly, although
some jurisdictions permit one to use deadly force. Of course,
if a person uses force against a lawful arrest, he or she is fully
liable for whatever crime results (assault, battery, or murder),
as well as for resisting a lawful arrest.
•Arrestees must be promptly brought before judges and
released if there is no probable cause. When available, bail
is set immediately. Also, federal law now permits civil suits
against law enforcement officers for violation of a person’s
civil rights. Prohibiting resistance advances two important
public policy objectives: First, it fosters obedience to police,
and, second, it reduces violence.
• In 1974 a Memphis, Tennessee, police officer shot and killed a 15-
year-old male who was fleeing a burglary. The boy had stolen 40
dollars. The family of the deceased boy sued the police department in
federal court for violating his constitutional rights. The case ended up
before the United States Supreme Court.
• In Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that the use
of deadly force by a police officer is a “seizure” under the Fourth
Amendment. Accordingly, the test used to determine whether the use
of deadly force is proper is the Fourth Amendment’s test:
reasonability. The Court then held that the use of deadly force is
reasonable only when the person fleeing is a dangerous felon. This
finding invalidated the laws of many states that permitted the use of
deadly force to stop all fleeing felons, including those who posed no
threat to life or limb, such as thieves, extortionists, and those who
tendered bad checks. The Court did not state what standard must be
applied in cases of nondeadly force. Some courts applied a due
process standard, others the Fourth Amendment’s reasonableness
standard.
• Finally, note that police officers are often put into positions
where they must defend themselves, such as during an arrest.
The same rules discussed earlier concerning self-defense
apply in these situations, with one exception: Police officers
are not required to retreat. Thus, if a police officer is involved
in an arrest that involves escalating violence, the police
officer may have to use deadly force to defend against the
criminal’s attack.
•Arrest by Citizens: In most jurisdictions a citizen may not
arrest a misdemeanant unless the person making the arrest
witnessed the crime. The reason for these rules is to provide
citizens who make such arrests with immunity from civil and
criminal prosecution. However, the citizen must be privileged
to make the arrest and, even when privileged, a reasonable
amount of force must be used.
• In some jurisdictions, a private person making an arrest
may use deadly force only when the person is in fact a
felon. The jurisdictions employing this rule are split:
Some permit the use of deadly force by private citizens
to arrest for any felony and others only for specific
felonies (e.g., murder and rape). These jurisdictions are
similar in one important regard. The person against
whom the deadly force is used must have in fact
committed the crime. A reasonable, but incorrect, belief
that the person has committed a crime is not a defense.
• Some states have followed the Model Penal Code
approach, which prohibits the use of deadly force by
private persons in all circumstances.
• he results are different if a private person is assisting a
law enforcement officer. In fact, many states have
statutes that require citizens to assist police officers
upon order. In such cases, the private party is privileged
to use whatever force is reasonable. In addition, a
private person responding to a police officer’s order to
assist in an arrest is privileged, even if the police officer
was exceeding his or her authority and had no cause to
make the arrest. In such instances, the police officer
may be liable for both his or her own actions and the
actions of the private party summoned. Of course, there
are limits to the rule. For example, a private person who
obeys a police officer’s order to strike an already
apprehended and subdued criminal would not be
privileged.
Infancy: At common law, it was a complete defense to a charge that the
accused was a child under the age of seven at the time the crime was
committed. It was irrebuttably presumed that children under seven were
incapable of forming the requisite mens rea to commit a crime. A
rebuttable presumption of incapacity existed for those between 7 and 14
years of age. The presumption could be overcome for those between 7
and 14 if the prosecution could prove that the defendant understood that
the criminal act was wrong.
Few minors are charged with crimes today. This is the result of the
advent of the juvenile court systems in the United States. Currently each
state has a juvenile court system that deals with juvenile delinquency
and neglected children.
Statutes vary, but it is common for juvenile courts to possess exclusive
jurisdiction over criminal behavior of juveniles. However, some states
give concurrent jurisdiction to criminal courts and juvenile courts. If
concurrent, the juvenile court usually must waive jurisdiction before the
criminal court can hear the case. Determining who is a juvenile also
differs, with some jurisdictions utilizing a method similar to the common
law (irrebuttable and rebuttable presumptions) and others simply setting
an age cutoff, such as 14 or 16.
The purpose of the juvenile justice system differs from that of the
criminal justice system. Whereas criminal law has punishment as one of
its major purposes, the purpose of the juvenile system is not to punish
but to reform the delinquent child.
Intoxication: intoxication refers to all situations in which a person’s
mental or physical abilities are impaired by drugs or alcohol.
•It is generally said that voluntary intoxication is a defense if it has
the effect of negating the required mens rea. In common-law
language, this means that if intoxication prevents a defendant from
being able to form a specific intent, then the crime is reduced to a
similar general-intent crime. For the crime of murder, intoxication
is a defense if it prevents the defendant from forming the
premeditation, deliberation, or purposeful element. In such cases,
the charge is reduced from first-degree to second-degree murder.
Not all states recognize voluntary intoxication as a defense. The
question whether a defendant has a due process right to have an
intoxication defense heard by a jury was answered in the negative
by the Supreme Court in the 1996 case Montana v. Engelhoff. The
Court’s rationale for rejecting the right focused on the scientific
ambiguity of the impact of intoxication on mens rea and the lack of
consensus among the states in recognizing the defense.
• In the rare case of involuntary intoxication in jurisdictions that permit the
defense, the defendant is relieved of liability entirely. To be successful with
such a claim, the defendant is required to show that the intoxication had the
same effect as insanity. In jurisdictions using the M’Naghten test for
insanity, a defendant is required to prove that the intoxication prevented him
or her from knowing right from wrong.
Mistake: People may be mistaken in two ways. First, one may believe
that some act is legal when it is not. This is a mistake of law. Second, a
person may not understand all the facts of a given situation. This is a
mistake of fact. As a general proposition, mistake of fact is a defense,
and mistake of law is not. However, many exceptions to each rule have
been developed.
• There are two situations in which a person can make a mistake of
law. The first occurs when an individual is unaware that his or her
actions are prohibited by statute: “I didn’t know it was against the
law not to file a tax returnǃ” The second occurs when a person
takes an act, under the color of a legal right and in good faith, only
to find out later that the act was illegal.
•Another exception to the rule that mistake of law is no defense
exists when a person relies on statutes, judicial opinions, or certain
administrative decisions that later turn out to be wrong. The rule is
sound for two reasons. First, as a matter of public policy, it is not
wise to prosecute people for acting in conformity with the law. The
result would be individual interpretation of all laws and disregard
for those statutes, regulations, or judicial decisions believed
incorrect. Second, as a matter of due process, it appears that no
notice has been provided that compliance with the law will be
punished.
• Finally, one defense that is not accepted is reliance on the advice of
counsel. If a lawyer advises a client that a particular act is legal
when it is not, the client will be liable for the crime if the act is
taken.
Entrapment: Entrapment occurs when law enforcement officers
encourage a person to commit a crime with the intent of arresting and
prosecuting that person for the commission of that crime. Or The act of
government officials (usually police) or agents inducing a person to
commit a crime that the person would not have committed without the
inducement.
• There is not a constitutional basis for entrapment and the
jurisdiction decides the structure of it. Currently two tests are used
to determine whether a defendant was entrapped: the subjective
and objective tests.
•Subjective test attempts to distinguish between those who are
predisposed to commit crime from those who are not. . The test is
subjective; the defendant’s mental state at the time of the
encouragement is imperative. A defendant is predisposed if he or
she is ready to commit the crime and is only awaiting the
opportunity. The Supreme Court has said that the subjective test is
designed to draw a line between the “unwary innocent and the
unwary criminal.” Defendants criminal record may be relevant to
show predisposition
• The objective approach does not focus on “substantial risk that an
offense will be committed by persons other than those who are
ready to commit it.”
• The defendant’s actual state of mind is not relevant to this
inquiry, and, accordingly, evidence of a defendant’s criminal
history is irrelevant. Under this approach, defendants may be
acquitted even though they were predisposed to commit the
crime. Suppose a police officer offers a prostitute for sex.
The prostitute would have agreed had the officer offered .
Using the subjective approach, the prostitute would be
convicted because she was predisposed to engage in
prostitution. However, in jurisdictions using the objective
test, she may have been entrapped, as women who do not
normally sell sex might be encouraged to do so for .
• In many states entrapment may not be used to defend against
crimes involving violence to people, such as battery and murder.
The Model Penal Code also takes this view.
Alibi and Consent:
•Alibi is a claim by a defendant that he or she was not present at the
scene of the crime at the time it was committed.
• Of course, the government must prove the elements of the
crime (e.g., presence at the crime) beyond a reasonable
doubt. This means that the defendant bears no burden in an
alibi defense.
• Consent is a voluntary and active agreement. Victim consent is a
defense to some crimes, such as rape or larceny.
Statutes and Limitations: crimes that must be prosecuted within a
specified time after being committed. If prosecution is initiated after the
applicable statute has expired, the defendant is entitled to a dismissal.
• Statutes vary in length; and serious crimes, such as murder, have
no limitation. Generally, the higher the crime in the jurisdiction’s
classification system, the longer the statute. Statutes begin running
when the crime occurs; however, statutes may be tolled in some
situations. Tolling refers to stopping the clock.
• Sometimes a prosecution for a serious crime may begin after the
statute on a lesser included crime has expired. For example, battery
is a lesser included crime of aggravated battery. Assume that
aggravated battery has a 6-year statute and battery 3 years. In most
jurisdictions, a prosecutor may not circumvent the 3-year statute by
charging aggravated battery and including the lesser battery
offense in the information or indictment. After the time has run out
on the lesser offense, but not on the more serious offense, the
defendant is either convicted of the greater offense or acquitted,
but can no longer be convicted on the lesser offense. However, at
least one jurisdiction does not follow this rule.
International and Comparative Law
Several sites contain government, law, and justice information from many nations and international
organizations from around the globe.
At http://www.lawresearch.com you will find both United States and foreign government legal
information. Hieros Gamos claims to have descriptions and laws from all the nations of the world. It is an
excellent site full of text and graphics. The URL is http://www.hg.org/index.html
Constitutions of nations can be found in the following locations:
http://confinder.richmond.edu/
http://www.findlaw.com/01topics/06constitutional/03forconst/index.html
*Not Guilty by Reason of Insanity or Guilty But Mentally Ill
