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VOLUME 7 - CHAPTER 101

    101.1.5.1    Sex Crimes: Consent Induced By Fraud --Collateral Matter As Defense Theory [Reserved]

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PRACTICE NOTE: In People v. Williams (CA 1992) 4 C4th 354 [14 CR2d 441], the court held that "because the Mayberry [mistaken belief as to consent] instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Williams, 4 C4th at 362.) Hence, Williams effectively requires the defendant to corroborate his own testimony with conduct by the victim in order to obtain an instruction upon reasonable belief in consent. This requirement raises 14th Amendment due process considerations by precluding the defendant from obtaining a jury determination as to the credibility of the defense upon which he/she has relied. (See U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 [failure to instruct on theory of defense supported by the evidence violates due process].)

    Williams stated that the jury should be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that the equivocal conduct on part of the victim was the product of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Williams, 4 C4th at 364.)

    The defense of reasonable belief as to consent is well established. (See People v. Mayberry (CA 1975) 15 C3d 143, 157-58 [125 CR 745].) Hence, when the record contains evidence that the defendant had a bona-fide and reasonable belief that the prosecutrix consented to the sexual intercourse, instruction on this defense theory should be given. (See People v. Simmons (CA 1989) 213 CA3d 573, 579-80 [261 CR 760].)

    However, Simmons teaches that it is not enough to simply present evidence that the defendant and victim engaged in consensual sexual relations on prior occasions. In Simmons, the defendant presented such evidence but did not testify himself and did not present any other evidence either directly or circumstantially bearing on his state of mind at the time of the alleged offense. The Court of Appeal held that the defendant had no right to a Mayberry instruction under these circumstances.

    This does not mean that the requisite evidence must come from the defendant. Circumstantial evidence of the defendant's good faith belief in consent can be provided by the testimony of third persons. (See e.g., People v. Anderson (CA 1983) 144 CA3d 55, 62 [192 CR 409]; see also FORECITE National™ 25.12.5 [Proof Of Intent: Circumstantial Evidence Sufficient].)

    See also FORECITE National™ 252.7 [Consent, Mistaken Belief].

PRETRIAL STRATEGY NOTE: Simmons illustrates the importance of obtaining pretrial rulings on jury instructions. (See FORECITE National™ 1.2.4 [Pretrial Rulings On Jury Instruction Issues Can Help With Trial Strategy And Make A Better Appellate Record].) If there is any question as to the sufficiency of the evidence to warrant a Mayberry instruction counsel could make a pretrial offer of proof -- in camera if possible -- in order to determine whether or not the proposed evidence will be sufficient to instruct upon the defense and to allow an opportunity to develop additional evidence during trial if necessary. The disposition of this pretrial request should allow counsel to make a more informed choice as to whether or not the defendant should testify.

    To avoid premature revelation of defense strategies and evidence, the request and offer of proof could be made at the close of the prosecution's case. However, by making the request pretrial, counsel will have the added advantage of utilizing cross-examination to cure any anticipated deficiencies in the evidence necessary to obtain the requested instruction.

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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RATIONALE: Prior consensual sex acts between the defendant and victim are relevant to a defense theory of consent or good faith belief in consent. Hence, an appropriate instruction on the relationship of this evidence to the defense theory should be given on request.

POINTS AND AUTHORITIES: Where there is evidence of consent or a good faith reasonable belief that the victim consented (see FORECITE National™ 101.1.4.1 [Good Faith Belief In Consent: General Principles]), the jury should be permitted to consider evidence of prior consensual sex acts between the defendant and victim. (See People v. Perez (CA 1987) 194 CA3d 525, 528-30 [239 CR 569]; see also People v. Barnes (CA 1986) 42 C3d 284, 301-302 [228 CR 228]; Bixler v. Commonwealth (KY 1986) 712 SW2d 366, 368; Commonwealth v. Blair (MA 1986) 488 NE2d 1200, 1203; Re Johnson (OH 1989) 573 NE2d 184, 188 [testimony by third person that victim had expressed desire to have sexual relations with defendant was not evidence of sexual act or conduct barred by rape shield law and should have been admitted as relevant on issue of consent]; Clay v. Commonwealth (VA 1992) 414 SE2d 432, 434; but see Drymon v. State (AR 1994) 875 SW2d 73, 77 [incidents of prior sexual conduct held inadmissible]; State v. Jackson (WI 1997) 567 NW2d 920, 923-24 [defendant failed to establish elements necessary for exception to rape shield law].)

    However, consent must be at issue to permit such evidence. (See People v. M.D. (IL 1992) 595 NE2d 702, 714; State v. Kindrick (CT 1993) 619 A2d 1, 3 [a condition precedent to this exception is that the defendant raise a defense of consent].)

     See also FORECITE National™ 252.7 [Consent, Mistaken Belief].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

Annotation, Admissibility And Prosecution For Sex Offense Of Evidence Of Victim’s Sexual Activity After The Offense, 81 ALR4th 1076.

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

    Evidence was received that _______________ (name of alleged victim) consented to and did engage in [sexual intercourse] [_______________] with the defendant on one or more occasions prior to the incident upon which the charge in this case is based.

    Consider such evidence as it may bear on the question of [whether the alleged victim consented to the act of [sexual intercourse] [_______________] charged against the defendant in this case] [or] [whether defendant had a good faith reasonable belief that the alleged victim consented to the act of sexual intercourse] [_________________].

    You must not consider such evidence for any other purpose.

[Source: FORECITE National™.]

    It is [a] [the] defense theory that _____________ (name of alleged victim) consented to have [sexual intercourse] [____________ (other sex act)] with the defendant. In deciding the issue of consent, consider evidence of any previous specific acts of sexual intercourse with the defendant.

[Cf. VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 44.720 [Defense Of Consent-Evidence Of Previous Acts Of Sexual Intercourse] (Lexis, 2000).]

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 VOLUME 7 - CHAPTER 101

RATIONALE: Because the essence of rape is the outrage to the person and feelings of the victim, it should be an element of rape that the victim was alive when the sexual act was committed. Therefore, when there is evidence that the victim was dead a defense theory instruction on this issue may be appropriate.

POINTS AND AUTHORITIES: "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the female." (California Penal Code § 263) "It is manifest that the 'feelings' of a female cannot be offended nor does the victim suffer 'outrage' where she is dead when the sexual penetration occurred." (People v. Stanworth (CA 1974) 11 C3d 588, 605, fn 15 [114 CR 250].) Thus, it was held that the victim must be alive at the moment of penetration in order to support conviction of rape. (Ibid.; see also Thompson v. Nagle (11th Cir. 1997) 118 F3d 1442, 1448 [under Alabama law, a conviction for rape requires evidence that the victim was alive at the time of intercourse]; People v. Ramirez (CA 1990) 50 C3d 1158, 1176 [270 CR 286] [applying same rule to sodomy]; People v. Sellers (CA 1988) 203 CA3d 1042, 1050-51 [250 CR 345]; People v. Vela (CA 1985) 172 CA3d 237, 242 [218 CR 161]; but see State v. Whitsell (OH 1990) 591 NE2d 265, 278 [State was required to show that victim was alive when series of assaults began which ultimately resulted in act of sexual penetration charged; it was not required to show that victim was still alive at the time of penetration]; Wharton’s Criminal Law (West, 15th ed. 1993) § 277, pp. 16-17 ["A charge of rape may be sustained even if the murder-rape victim was already dead at the time of sexual penetration; but there is authority to the contrary"].)

    For example, in Kentucky the rape of a dead body is not a sexual offense but instead creates liability under statutes dealing with abuse of a corpse. (See Cooper, KENTUCKY INSTRUCTIONS TO JURIES section 4.24 [First Degree Rape; Victim Under 12] (Anderson, 4th ed. 2001); see also Sanborn v. Commonwealth (KY 1988) 754 SW2d 534, 550 [if there is substantial evidence to support a theory that the alleged rape was committed after the victim was already dead, the defendant is entitled, upon request, to an appropriate instruction on this theory and the alternative charge of abuse of a corpse]; Smith v. Commonwealth (KY 1987) 722 SW2d 892, 893.)

    In sum, the existence of a living victim may be an element of the offense upon which the court is obligated to instruct. (People v. Kelly (CA 1992) 1 C4th 495, 524-28 [3 CR2d 677].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: The statutory language may dictate whether the victim being alive is an element of the charge upon which the jury should be instructed in every case or a defense theory. However, if the code does not specifically eliminate a live victim as an element of the charge then the requirement that the victim be alive could be implied from the general statutory language which normally assumes that the crime was committed against a human being or a person.

    See also FORECITE National™ 101.1.5.5 [Rape/Sex Crimes: Good Faith Belief That Victim Was Dead As Defense Theory].

    See also FORECITE National™ 78.3.2.4 [Inhabited Dwelling Defined: Occupant Must Be Alive].

NOTE: Intercourse with a deceased victim does constitute attempted rape so long as the defendant intended to rape a live victim. (People v. Thompson (CA 1993) 12 CA4th 195, 202 [15 CR2d 333]; People v. Kelly (CA 1992) 1 C4th 495, 524-28 [3 CR2d 677].)

RESEARCH NOTES:

Annotation, Fact That Murder-Rape Victim Was Dead At Time Of Penetration As Affecting Conviction For Rape, 76 ALR4th 1147.

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

    The defendant is not required to prove that the victim was dead [at the moment of penetration] [at the time the alleged _______________ (insert charged sex act) occurred]. If evidence is present that _________________ (name of alleged victim) was dead when the alleged sex act occurred, [if it did,] the prosecution must prove beyond a reasonable doubt that ________________ was alive at that time. If after consideration of all the evidence [and lack of evidence]* you have a reasonable doubt that _______________ was alive when the alleged sex act occurred, [if it did,] you must find the defendant not guilty.

* See FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].

[Source: FORECITE National™; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.19 [Defense Of a Third Person] ¶ 5 (Bar Association of the District of Columbia, 4th ed. 1993)).]

    The prosecution must prove beyond a reasonable doubt that ___________ (name of alleged victim) was alive when the assault which [overcame [hid] [her] resistance] [allowed the sexual penetration] was committed.

[See State v. Whitsell (OH 1990) 591 NE2d 265, 278.]

SAMPLE INSTRUCTION # 4:

    It is [the] [a] defense theory that ________________ (name of alleged victim) was already dead when the [alleged] sex act was committed.  If you have a reasonable doubt that __________________ (name of alleged victim) was alive when the sex act was committed you must give the defendant the benefit of that doubt and find him not guilty.

[Source:  FORECITE National™.]

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RATIONALE: If the sex offense requires commission of a sex act on a person who is alive, the defendant's good faith belief that the victim was dead should be a defense theory which may negate the required criminal intent.

POINTS AND AUTHORITIES: In some jurisdictions a conviction of rape requires that the victim be alive at the time of intercourse. (See FORECITE National™ 101.1.5.4 [Rape/Sex Crimes: Defense Theory That Victim Was Not Alive].)

    In such jurisdictions it follows that felony murder based on rape also requires that the victim be alive. (See State v. Spencer (NJ 1999) 725 A2d 106, 118 [rape-murder victim must be alive at the time the assaultive behavior begins in order to support a conviction of aggravated sexual assault or felony murder predicated upon that aggravated sexual assault; however, the victim need not be alive at the time of penetration provided the sexual assault is part of a continuous transaction]; see also State v. William (KS 1991) 807 P2d 1292, 1303 [application of the felony-murder rule is questionable when the attempt at sexual contact occurs after the victim is already dead]; Commonwealth v. Nickerson (MA 1983) 446 NE2d 68, 73 and cases cited therein.)

    See also FORECITE National™ 59.5 [Requirement That Victim Be Alive].

    See also FORECITE National™ 92.1.6 [Homicide: Requirement That Victim Be Alive At Time Of Homicidal Act].

    See also FORECITE National™ 252.8 [Mistake Of Fact].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

    It is a defense to the charge of rape that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that __________ (insert name of alleged victim) was dead at the commencement of, and the duration of the rape of ___________________ (insert name of alleged victim). If from all the evidence you have a reasonable doubt whether the defendant believed ______________ (insert name of alleged victim) to be dead at the commencement of, and for the duration of, the rape, you must find him not guilty of rape.

[Source: FORECITE National™.]

    An element of the charge of _______________ is that the defendant knew the victim was alive when the sex act was committed] [It is a defense theory that [he] [she] honestly [and reasonably] believed that __________________ (name of alleged victim) was dead when the sex act occurred [, if it did occur].]

    The defendant is not required to prove that [he] [she] did not know the victim was alive when the sex act was committed. If, after consideration of all the evidence, [and lack of evidence,]* you cannot find that the defendant knew the victim was alive when the sex act was committed, you must return a verdict of not guilty.

* See FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].

[Source: FORECITE National™.]

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RATIONALE: If the sex act itself is enough to satisfy the element of force, then there would be no meaningful distinction between forcible and nonforcible sex acts. Hence, the element of force should be defined to require greater force than that necessary to accomplish the sex act itself.

POINTS AND AUTHORITIES: Some standard pattern instructions do not contain a definition of the term "force." (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 10.00 [Rape–Spouse And Non-Spouse–Force Or Threats] (West, 6th Ed. 1996).) However, the term has been specially defined in such a manner that the definition would not be readily known to the average lay juror. (See People v. Pitmon (CA 1985) 170 CA3d 38, 52 [216 CR 221]; see also FORECITE National™ 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].)

    For example, in People v. Cicero (CA 1984) 157 CA3d 465, 474 [204 CR 582], the court held that for purposes of lewd conduct with a child, the prosecution must prove that the defendant used "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (See also State v. LeBlanc (LA 1987) 506 So2d 1197, 1200 [Legislature contemplated a requirement of something more than the mere exertion of physical effort necessary to commit the lewd act].)

    An instruction utilizing this definition of force should also be given in sex offense prosecutions involving adult victims. In fact, Cicero's definition of force was actually borrowed from the law of rape. (Cicero, 157 CA3d at 476; see also People v. Bergschneider (CA 1989) 211 CA3d 144, 153 [259 CR 219] [trial court gave the Cicero definition of force in a forcible rape and forcible oral copulation prosecution].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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PRACTICE NOTE: "Since ordinary lewd touching often involves some additional contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive 'force.'" (People v. Schulz (CA 1992) 2 CA4th 999, 1004-05 [3 CR2d 799].)

    See also FORECITE National™ 101.1.5.6 [Rape/Sex Crimes: Defense Theory Of Insufficient Force].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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RATIONALE: Because the force and violence necessary in a sex offense depends on the age, size and strength of the parties, instruction on these factors may be appropriate.

POINTS AND AUTHORITIES: State v. Fenton (OH 1990) 588 NE2d 951, 965 ["[t]he force and violence necessary in rape is naturally a relative term, depending upon the age, size and strength of the parties and their relationship to each other"]; see also DuPont v. State (TX 1982) 641 SW2d 250, 253 [force must be "sufficient to overcome resistance, taking into consideration the relative strength of the parties and the circumstances of the case"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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RATIONALE: Forcible compulsion based on the victim's unreasonable subjective response to the defendant's conduct should not be sufficient to prove a forcible sex offense unless the defendant knew of the fear and took advantage of it.

POINTS AND AUTHORITIES: In forcible sex offenses the element of fear of immediate and unlawful bodily injury has two components: one subjective and one objective. The subjective component asks whether the victim genuinely entertained the fear and the objective component asks whether the victim's fear was reasonable, or, if unreasonable, whether the perpetrator knew of the victim's subjective fear and took advantage of it. (People v. Iniguez (CA 1994) 7 C4th 847, 857 [30 CR2d 258]; see also People v. Hecker (CA 1990) 219 CA3d 1238, 1250 [268 CR 884]; People v. Bergschneider (CA 1989) 211 CA3d 144, 154 [259 CR 219]; State v. Rusk (MD 1981) 424 A2d 720, 727 [fear element for sexual offense must be established by a finding that the victim’s fear was reasonable]; State v. Weisberg (WA 1992) 829 P2d 252, 255.)

    See also FORECITE National™ 100.1.6.2 [Robbery: Victim's Fear Must Be Objectively Reasonable].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

    Forcible compulsion cannot be based solely on the victim’s subjective reaction to particular conduct. There must be a 'threat' -- a communication of an intention to cause bodily injury.

[Source: State v. Weisberg (WA 1992) 829 P2d 252, 255.]

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RATIONALE: In a rape case where there is an issue as to whether the victim had an "unsound mind," definition of that term may be necessary.

POINTS AND AUTHORITIES: See State v. Soura (ID 1990) 796 P2d 109, 112; see also Florez v. Sargeant (AZ 1996) 917 P2d 250, 254.

    See also FORECITE National™  3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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PRACTICE NOTE: In determining whether each penetration is distinct, the analysis should consider the following factors adapted from decisions of jurisdictions that have considered the issue of multiple punishment in cases of rape: "(1) temporal proximity of penetrations (the greater the interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (movement or repositioning of the victim between penetrations tends to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses); (5) defendant's intent as evidenced by his conduct and utterances; and (6) number of victims (although not relevant here, multiple victims will likely give rise to multiple offenses)." (See Herron v. State (NM 1991) 805 P2d 624, 628; see also Johnson v. Alaska (AK 1988) 762 P2d 493, 495 [multiple convictions which occur as part of a single transaction cannot stand, however separate convictions for multiple acts of penetration involving different orifices are permissible]; State v. Griffin (AZ 1986) 713 P2d 283, 287; but see Carter v. Commonwealth (VA 1993) 428 SE2d 34, 42 [generally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense].)

    See also FORECITE National™ Chapter 274 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].

OPINION AVAILABLE: People v. Volk REPUBLISHED (CA 1991) 234 CA3d 1802 [286 CR 502] held that defendant may request amplifying instruction relating to multiple penetrations. To read the Volk opinion, click here. [Opinion Bank # O-149].

RESEARCH NOTES:

See Annotation, Multiple Instances Of Forcible Intercourse Involving Same Defendant And Same Victim As Constituting Multiple Crimes Of Rape, 81 ALR3d 1228.

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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PRACTICE NOTE: See Annotation, Entrapment Defense In Sex Offense Prosecutions, 12 ALR4th 413; see also Ft. Lauderdale v. Couts (FL 1970) 239 So2d 874, 875 [record reflected adequate competent evidence to support the applicability of the entrapment defense]; State v. Ketter (MN 1985) 364 NW2d 459, 463; State v. McBride (OR 1979) 599 P2d 449, 451 [prostitution conviction was reversed on the ground of the trial judge's refusal to instruct the jury on entrapment].)

    See FORECITE National™ 257.3.6.1 [Entrapment: Sex Offenses].

RESEARCH NOTES:

See Goldstein, The Entrapment Defense in a Nutshell, NACDL CHAMPION, Dec. 1987 at 4.

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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    101.1.5.13    Penetration With Foreign Object: Defense Theory Of Double Jeopardy If Preparatory To Intercourse

PRACTICE NOTE: In Rhoden v. Rowland (9th Cir. 1993) 10 F3d 1457, 1462, the court held that federal double jeopardy principles are not implicated when the defendant is convicted and sentenced separately for an act of rape and an act of digital penetration. (10 F3d at 1461.) However, in so doing, the court relied on the fact that the digital penetration and rape were not simultaneous and the act of penetration did not appear to have been necessary or preparatory to the act of intercourse. (10 F3d at 1462.) Hence, an argument remains that separate convictions and sentences violate double jeopardy when the digital penetration and rape are simultaneous and the digital penetration was necessary or preparatory to the act of intercourse.

RESEARCH NOTES:

See generally, FORECITE National™ 305.6.8 [Former Jeopardy].

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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    101.1.5.14    Rape/Sex Crimes: Impotence As Defense Theory

    See FORECITE National™ 251.5.1 [Defendant's Lack Of Desire Or Ability To Have Sexual Intercourse As Defense To Sex Offense].

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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    See FORECITE National™ 252.7.8 [Assault With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As Defense Theory].

RESEARCH NOTES:

See generally, FORECITE National™  305.1.14 [Arson].

See also generally, FORECITE National™ 305.15.1 [Obscenity/Pornography].

See also generally, FORECITE National™ 305.19.2 [Sex Crimes].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)