NATIONAL
CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
VOLUME 11: AFFIRMATIVE DEFENSES AND DEFENSE THEORIES (Chapters 250-264)
TABLE OF CONTENTS
Chapter 250: Defenses And Defense Theories: General Issues
250.1 Grounds For Instruction On Defense Theory
250.1.1 Litigant’s Right To Instruction On Theory Of Case
250.1.2 Constitutional Right To Present A Defense As Ground For Defense Theory Instruction
250.1.3 Constitutional Right To Due Process And A Fair Trial By Jury As Ground For Defense Theory Instruction
250.1.4 Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction
250.1.5 Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction
250.2 Evidentiary Requirements For Defense Theory Instruction
250.2.1 Defense Theory: Evidence Required For Instruction
250.2.2 Defendant Need Not Testify To Obtain Instruction On Defense Theory
250.2.3 Judge Not To Resolve Credibility In Evaluating Evidence In Support Of Instruction On Defense Theory
250.2.4 Court's Duty To Instruct Regarding Defense Theory: Jury Not Required To Completely Accept Either Theory Of The Case
250.2.5 Right To Instruction On Inconsistent Defenses
250.3 Procedural Requirements For Defense Theory Instruction
250.3.1 Duty Of Court To Instruct Sua Sponte On Unrequested Defense Or Defense Theory
250.3.2 Asserting Defense Available To Third Party
250.3.3 Defense Theory: Requirement Of Notice To Prosecution
250.4 Defenses And Defense Theories: Burden Of Proof On Prosecution
250.4.1 Defense Theory: Not Included In General Burden Of Proof Instruction
250.4.2 Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden
250.4.3 Presumption Of Innocence: Improper To Label A Theory Which Negates An Element Of The Charge As A “Defense”
250.4.4 Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant
250.4.5 Defense Theories: Failure To Instruct As Creating A Conclusive Presumption
250.4.6 Defense Theory Which Negates Intent: Jury Must Acquit If It Has A Reasonable Doubt
250.4.7 Improper To Shift Burden Of Proof To Defendant Where Defense Incorporates Element Of Charge
250.4.8 Defense Theory Instructions: Benefit Of Doubt To Defendant
250.5 Defenses And Defense Theories: Burden Of Proof On Defendant
250.5.1 Defenses: No Instruction On Defendant’s Burden Of Producing Prima Facie Evidence
250.5.2 Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements
250.5.3 Defendant’s Burden As To Affirmative Defense Does Not Implicate Privilege Against Self- Incrimination
250.5.4 Defenses: Burden Of Proof -- Federal Rule
250.6 Right To Defense Theory Instructions: Miscellaneous Issues
250.6.1 Validity Of Common Law Defenses
250.6.2 Strategy Note: Whether To Request Defense Theory Special Instruction Which May Limit Jury’s Consideration Of The Evidence
250.6.3 Lesser Offense As Defense Theory
250.7 Motive As Relevant To Defense Theories
250.7.1 Good Motive May Negate Required Mens Rea
250.7.2 When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant
250.7.3 Motive: Application To Third Party Suspect
250.8 Cultural Background As Relevant To Defense Theories
250.8.1 Cultural Background As Defense Theory
250.8.2 Culture As Relevant To Defendant’s Subjective Intent Or Mental State
250.8.3 Culture As Relevant To Objective Reasonableness Of Defendant’s Intent Or Mental State
250.8.4 Native American Cultural Defense
250.8.5 Cultural Defense As Relevant To Premeditation And Deliberation
250.8.6 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial
250.8.7 Culture As Relevant To Heat Of Passion
250.8.8 Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification
250.8.9 Failure To Present Evidence Necessary To Bridge A Culture Gap May Constitute Ineffective Assistance Of Counsel
250.8.10 Heat Of Passion: Consideration Of Defendant's Culture
250.9 Preclusion Of Defense Theory As Structural Error
250.9.1 Precluding Defendant From Arguing Theory Of Case Is Structural Error
Chapter 251: Defense Theories Alleging That The Defendant Did Not Commit The Criminal Act Or Omission
251.1 Abandonment
251.1.1 Abandonment -- Burden Of Proof
251.1.2 Withdrawal
251.2 Alibi
251.2.1 Alibi: Miscellaneous Issues
251.2.1.1 Improper To Use The Term "Alibi"
251.2.1.2 When Some Codefendants Rely On Alibi And Others Don’t
251.2.1.3 Alibi As To One Charge And Not Another
251.2.1.4 Alibi: Time Of Offense (“On Or About”) Instruction Improper When Defendant Relies On Alibi
251.2.1.5 Alibi: Prosecution Bound By Date Alleged In Charging Document
251.2.1.6 Alibi: Defendant Need Not Cover Exact Time Or Every Minute Of Time Involved
251.2.1.7 Use Of Term “Alibi” By Judge, Lawyers Or Witnesses: Curative Instruction
251.2.1.8 Alibi Does Not Preclude Instruction On Lesser Included Offenses
251.2.1.9 Comment On Credibility Of Alibi Witness -- Great Caution Required
251.2.1.10 Comment On Credibility Of Alibi Witness -- Requirement Of Balanced Instructions
251.2.1.11 Alibi: Consideration In Light Of All The Evidence
251.2.1.12 Alibi: Applicability To Conspiracy
251.2.1.13 Alibi: Sanction For Failure Of Defendant To Give Pre-Trial Notice -- Exclusion Of Evidence Too Onerous
251.2.1.14 Alibi: Witness Has No Duty to Reveal Alibi To Police Prior To Trial
251.2.1.15 Alibi: 5th Amendment Violation To Cross-Examine Defendant Regarding Failure To Reveal Alibi To Police
251.2.1.16 CAVEAT: Alibi May Open Door To Uncharged Crimes Or Acts
251.2.1.17 Alibi: Improper For Judge Or Prosecutor To Convince Alibi Witness Not To Testify By Informing The Witness That Perjury Charges Could Be Filed
251.2.1.18 Alibi: Defendant’s Post-Arrest Silence May Not Be Used To Impeach Alibi Witness
251.2.2 Alibi: Right To Instruction
251.2.2.1 Alibi: Right To Instruction
251.2.2.2 Alibi: Should Instruction Be Required Sua Sponte?
251.2.2.3 Failure To Give Alibi Instruction As Reversible Error
251.2.2.4 Prosecution's Introduction Of Allegedly False Alibi Evidence Necessitates Alibi Instruction
251.2.2.5 Alibi: Instruction May Be Predicated On Prosecution Evidence
251.2.2.6 Alibi Instruction: No Corroboration Required -- Defendant's Testimony Sufficient
251.2.2.7 Alibi: Only Refuge For Innocent
251.2.2.8 Alibi: Ineffective Counsel For Failure To Investigate Alibi Defense
251.2.2.9 Alibi: Ineffective Assistance Of Counsel For Failure To Request Alibi Instruction
251.2.3 Alibi: Burden Of Proof
251.2.3.1 Alibi: Should Not Be Referred To As A Defense
251.2.3.2 Alibi: Prosecution’s Burden To Disprove
251.2.3.3 Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element
251.2.3.4 Alibi: Rejection Or Disbelief Of Alibi Evidence Is Not Evidence Of Guilt
251.2.3.5 Alibi: Clarification That Defendant Has No Duty To Call Witnesses Or Produce Evidence
251.2.3.6 Alibi: Reasonable Doubt Favors Defendant
251.2.3.7 Alibi: Improper To Frame Issue In Terms Of Which Witnesses To Believe
251.2.3.8 Alibi: Necessity Of Finding That Crime Was Committed, That The Defendant Participated In It, That Necessary Elements Were Proven, Etc.
251.2.3.9 Disbelief Of Alibi Evidence: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
251.2.3.10 Alibi: Grand Jury Should Be Instructed That Defendant Does Not Have The Burden Of Proof
251.2.4 Alibi: Miscellaneous Instructions
251.2.4.1 Alibi: Federal Model Instructions
251.3 Consciousness Of Innocence
251.3.1 Instruction On Consciousness Of Innocence
251.3.2 Instruction On Consciousness Of Innocence To Remove Unfair Imbalance Between Prosecution And Defense
251.3.3 Instruction On Consciousness Of Innocence As Defense Theory
251.3.4 Consciousness Of Innocence Based On Rejection Of Immunity Offer
251.3.5 Consciousness of Innocence: Voluntary Surrender
251.3.6 Consciousness of Innocence: Voluntary Consent To Search
251.4 Good Character Of Defendant
251.4.1 Good Character Of Defendant: Miscellaneous Issues
251.4.1.1 Character Evidence: Factors To Consider
251.4.1.2 Distinction Between Character And Reputation Evidence
251.4.1.3 Good Character Of Defendant: Federal Model Instructions
251.4.2 Good Character Of Defendant As Defense Theory
251.4.2.1 Good Character Of Defendant: Right To Instruction As Defense Theory
251.4.2.2 Whether Jury Should Be Instructed That Good Character Of Defendant – “Standing Alone” -- Is Sufficient To Raise A Reasonable Doubt
251.4.2.3 Relating Good Character Evidence To Prosecution's Burden
251.4.2.4 Good Character Evidence: Jury “Must” Consider
251.4.2.5 Defense Theory That Good Character Of Defendant Is Inconsistent With Assaultive Or Malicious Intent
251.4.2.6 Defense Theory: Defendant's Personality Or Nature Is Inconsistent With A Required Element Of The Charge
251.4.2.7 Defendant’s Good Character: Defendant Has No Burden Of Producing Evidence Or Calling Witnesses
251.4.2.8 Improper For Prosecutor To Assume Defendant Is Guilty When Cross-Examining Good Character Witness
251.4.2.9 Good Character Evidence: Right To Expert Testimony That Defendant Is Not Deviant Or Abnormal
251.4.3 Good Character Defense: Strategic Concerns
251.4.3.1 Good Character Of Defendant: Limitation On Jury’s Consideration Of Rebuttal Witnesses Offered By Prosecution
251.4.3.2 Rebuttal Of Defendant's Good Character Evidence With "Have You Heard" Questions
251.4.3.3 Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation
251.5 Impotence
251.5.1 Defendant's Lack Of Desire Or Ability To Have Sexual Intercourse As Defense To Sex Offense
251.5.2 Impotence As Defense Theory: Relationship To Presumption Of Innocence
251.6 Mere Presence, Knowledge, Association, Etc.
251.6.1 Mere Presence: Jury Must Find A Legal Duty To Act -- A Moral Duty Is Not Sufficient
251.6.2 Mere Presence As Defense Theory -- Right To Instruction On Request
251.6.3 Misprison: Failure To Report A Crime
251.6.4 Mere Presence: Relationship To Presumption Of Innocence
251.7 Mistaken Identity (Eyewitness Identification)
251.7.1 Mistaken Identity: Right To Instruction On Prosecution Burden
251.7.2 Mistaken Identity Relationship To Presumption Of Innocence
251.7.3 Eyewitness Identification: Honest But Mistaken Identification
251.8 Motive As Relevant To Defense Theory
251.8.1 Motive As Relevant To Defense Theory
251.9 Third Party Guilt
251.9.1 Third Party Culpability As Defense Theory
251.9.2 Third Party Guilt: Relationship To Presumption Of Innocence -- Prosecution's Duty To Disprove
251.9.3 Third Party Guilt: Right To Related Instructions (Flight, Motive, Etc.)
251.9.4 Unjoined Perpetrators: Consideration Of Third Party Guilt
251.9.5 Third Party Guild: Reverse 404(b)
251.9.6 Third Party Culpability: Gang Evidence As Rebuttal To Third Party Defense
251.9.7 Third Party Guilt: Defendant Does Not Have To Prove That Another Person Committed The Crime
251.9.8 Third Party Guilt: No Special Evidentiary Requirements Should Be Imposed
251.9.9 Third Party Guilt: Ineffective Assistance Of Counsel
251.9.10 Third Party Guilt Defense: Threats From Alleged Third Party Culprit
251.9.11 Third Party Guilt: Motive And Opportunity As Test For Admissibility
251.10 Withdrawal As Defense Theory
251.10.1 Withdrawal: Conspiracy
251.10.2 Withdrawal: Accomplice Liability
251.10.3 Withdrawal: Self Defense
251.10.4 Withdrawal: Abandonment
251.11 Reverse 404(b) As Defense Theory Of Noncomplicity
251.11.1 Reverse 404(b): Defense Theory That Defendant Didn't Commit Uncharged Similar Crime
251.11.2 Reverse 404(b): Uncharged Acts In Support Of Third Party Guilt Defense Theory
251.11.3 Reverse 404(b): Defendant's Right To Present The Details Of The Witness' Uncharged Offense
Chapter 252: Defense Theories Based On Lack Of Criminal Intent
252.1 Abandoned Or Lost Property
252.1.1 Theft/Larceny: Abandoned Property
252.1.2 Appropriation Of Lost Property Is Not Theft Without Larcenous Intent
252.2 Accident
252.2.1 Accident: Reasonable Doubt Favors Defendant
252.2.2 Accident: Should Not Be Referred To As A "Defense"
252.2.3 Accident Or Misfortune: Definition
252.2.4 Negligent Homicide: Defendant's Right To Instruction That Accident Was Caused By The Other Person's Negligence
252.2.5 Accident: No Inference Of Intent From Use Of Weapon
252.2.6 Accidental Killing While Acting In Self Defense
252.3 Accidental Or Unwitting Possession
252.3.1 Carrying Concealed Weapon Without A License: Innocent Possession Defense
252.3.2 Possession: Accidental Or Unwitting Possession As Defense
252.4 Authorized Possession Of Contraband
252.4.1 Possession Of Controlled Substance: Defense Of Authorized Possession Pursuant To A Valid Prescription
252.5 Claim Of Right
252.5.1 Recapture Of Personal Property: Basic Principles
252.5.2 Claim Of Right: Error To Refuse Theory Of Defense Instruction
252.5.3 Claim Of Right: Applicability To Unlawful Taking Offenses
252.5.4 Claim Of Right: Honest Belief That Property Was Abandoned Or Lost
252.5.5 Claim Of Right On Behalf Of Another
252.5.6 Claim Of Right: Limitations
252.5.7 Claim Of Right: Self Help For Unliquidated Claims
252.5.8 Claim Of Right: Use of Force or Violence
252.5.9 Claim Of Right: Collection of Proceeds of Illegal Transactions
252.5.10 Claim Of Right: For The Purpose Of Revenge
252.5.11 Claim Of Right Inapplicable To Extortion
252.5.12 Claim Of Right: Applicability To Embezzlement
252.5.13 Claim of Right: Good Faith As Complete Defense To Charge Involving Intent To Defraud Or Willfulness
252.5.14 Good Faith Claim Of Title As Defense Theory
252.6 Consent, Actual
252.6.1 Miscellaneous Issues
252.6.1.1 Consent: General Principles
252.6.1.2 Consent Defined
252.6.1.3 Consent: Distinguished From Assent
252.6.1.4 Lack Of Consent As Element Of The Charged Crime
252.6.1.5 Consent: Improper To Define As "Positive Cooperation In Act"
252.6.1.6 Consent: Improper To Instruct That "Mere Passivity Does Not Amount To Consent"
252.6.2 Consent: Sex Offenses
252.6.2.1 Forcible Sex Offense: Consideration Of Consent On Issue Of Force Or Threats
252.6.2.2 Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent
252.6.3 Consent: Kidnapping
252.6.3.1 Consent As Defense To Kidnapping: Consent Obtained By Fraud Or Deceit
252.6.3.2 Consent As Defense To Kidnapping: Reasonable Belief Versus Actual Consent
252.6.4 Consent: False Imprisonment
252.6.4.1 False Imprisonment: Consent As A Defense
252.6.5 Consent: Assault Crimes
252.6.5.1 Assault: Consent To Bodily Injury -- Athletic Contest
252.6.6 Consent: Property Crimes
252.6.6.1 Burglary: Defense Of Consent
252.6.6.2 Theft: Consent As Defense
252.7 Consent, Mistaken Belief
252.7.1 Forcible Sex Offense: Reasonable Belief In Consent (Mayberry)
252.7.2 Mistaken Belief As To Consent -- Whether Belief Must Be Reasonable
252.7.3 Mistaken Belief As To Consent -- Evidentiary Limitations
252.7.4 Mistaken Belief As To Effectiveness Of Consent
252.7.5 Battery: Reasonable Belief In Consent As To The Touching
252.7.6 Robbery/Theft: Good Faith Belief In Consent
252.7.7 Kidnapping: Mistaken Belief As To Consent
252.7.8 Assault With Intent To Commit Rape Or Other Sex Crime: Good Faith Belief In Consent As Defense Theory
252.8 Mistake Of Fact
252.8.1 Miscellaneous Issues
252.8.1.1 Mistake Or Ignorance May Negate An Element Of The Offense
252.8.1.2 Improper To Limit Mistake Of Fact To Specific Intent Crimes
252.8.1.3 Distinction Between Mistake And Ignorance Of Law
252.8.1.4 Mistake Of Fact: Reasonable Doubt Favors Defendant
252.8.1.5 Mistake Of Fact: Negation Of Knowledge Element
252.8.1.6 Mistake Of Fact: Definition Of Good Faith
252.8.1.7 Mistake As To Immunity From Prosecution
252.8.1.8 Mistake Of Fact: Should Not Be Referred To As A "Defense"
252.8.1.9 Mistake Of Fact: Distinction Between Mistake As To Element And Mistake As An Affirmative Defense
252.8.1.10 Mistake Of Fact: Applicability When The Conduct Would Still Be Criminal
252.8.1.11 Failure To Instruct On Mistake Of Fact As Reversible Error
252.8.2 Whether Mistake Of Fact Must Be Reasonable
252.8.2.1 Mistake Of Fact: Criticism Of Requirement That Mistake Be Reasonable
252.8.2.2 Mistake: Unconstitutional To Require Reasonable Mistake Where Offense Requires Recklessness Or Higher Culpability
252.8.2.3 Unreasonable Mistake May Negate Criminal Intent Or Mental State
252.8.2.4 Mistake: Reasonable Belief Standard Requires Consideration Of A Reasonable Person In Defendant's Situation
252.8.3 Mistake Of Fact: Applicability To Specific Crimes
252.8.3.1 Bigamy: Mistake Of Fact As Defense
252.8.3.2 Mistake As To Exfelon Status
252.8.3.3 Mistake Of Fact As Defense To Possession Of Loaded Weapon
252.8.3.4 Mistake Of Fact As To Age: Unlawful Sexual Intercourse (Statutory Rape)
252.8.3.5 Mistake Of Fact As To Age: Child Pornography
252.8.3.6 Mistake Of Fact As To Age: Serving Alcohol To Minors
252.8.3.7 Bad Check: Defense Of Mistake
252.9 Mistake Of Law
252.9.1 Mistake Of Law: Negation Of A Mental Element Of The Charge
252.9.2 Mistake Of Law As To Legal Duty: Distinction Between Tax And Nontax Cases
252.9.3 Mistake Of Law: Applicability To “Regulatory Statutes”
252.9.4 Ignorance Of The Law Due To Unavailable Law
252.10 Innocent Intent, Good Faith
252.10.1 Innocent Intent
252.10.1.1 Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement
252.10.1.2 Defense Theory: Defendant’s Intent To Apprehend The Culprits
252.10.1.3 Receiving/Possession Of Stolen Property: Innocent Intent Defense
252.10.1.4 Theft/Larceny: Temporarily Using Or Borrowing Property As Defense Theory
252.10.1.5 Vague Or Ambiguous Statute/Regulation: Defendant's Reasonable Belief In Lawfulness Of Conduct
252.10.2 Good Faith
252.10.2.1 Good Faith Defense: General Willfulness And "Intent To Defraud" Instructions Inadequate For Good Faith Defense
252.10.2.2 Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice
252.11 Miscellaneous Theories To Negate Criminal Intent
252.11.1 Claim Of Right
252.11.2 Defense Theory: Good Faith In Tax Cases
252.11.3 Innocent Possession
252.11.4 Desire To Be Arrested As Negating Intent
252.11.5 Ethical Or Professional Responsibility Of Lawyer As Defense Theory
252.11.6 Good Faith Practice Of Medicine
252.11.7 Good Motive May Negate Required Mens Rea
252.11.8 Momentary, Innocent, Unwitting Or Accidental Possession
252.11.9 Culture As Relevant To Defendant’s Subjective Intent Or Mental State
Chapter 253: Justification: Self Defense, Defense Of Others, Parental Discipline, Etc.
253.1 Battered Person’s Syndrome
253.1.1 Battered Person Syndrome: Challenge To Required Objective Mental State Under On Reasonable Person Standard
253.1.2 Battered Person Syndrome As Relevant To Self Defense Issues
253.1.3 Battered Person Syndrome As Relevant To Issue Of Imminent Danger
253.1.4 A Previously Battered Person Has The Right To Act More Quickly And Harshly In Self Defense
253.2 Culture As Relevant To Defense Theories Involving Defendant’s Subjective Mental State And/Or The Objective Reasonable Person Standard
253.2.1 Cross References To Cultural Background Issues
253.3 Parental Discipline
253.3.1 Parental Discipline: Only Reasonable Force Permitted
253.3.2 Parents’ Right to Discipline: Factors to Consider
253.3.3 Parental Discipline: Burden Of Proof
253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete
253.4.1 Self Defense: Miscellaneous Issues
253.4.1.1 Self Defense: Right to Arm
253.4.1.2 Brandishing A Deadly Weapon In Self Defense
253.4.1.3 Self Defense: Still Available Even If Defendant Was Unlawfully Carrying A Weapon
253.4.1.4 Self Defense: Definition Of Necessary
253.4.1.5 Self Defense: Not Guilty Verdict As To Greater Offense Precludes Conviction Of Lesser
253.4.1.6 Self Defense -- Defense Of Others: Should Apply To Both Threat Of Force And Use Of Force
253.4.1.7 Self Defense: Right To Continue Shooting
253.4.1.8 Self Defense: Right To Pursue Assailant
253.4.1.9 Self Defense: When Defendant Does Not Intend To Kill
253.4.1.10 Self Defense: Racial Epithets
253.4.1.11 Self Defense Requires Acquittal Even If Defendant Also Acted In Heat of Passion
253.4.1.12 Self Defense Against Forcible Felony: Felony Need Not Be Charged
253.4.1.13 Self Defense Against Assault Or Battery: Applicability To Battery Without Bodily Harm
253.4.1.14 Applicability Of Self Defense To Felony Murder
253.4.1.15 Self Defense: Exfelon In Possession Of Weapon
253.4.1.16 Speeding: Justification As Defense Theory
253.4.1.17 Self Defense: When Deadly Force May Be Used By Private Citizen To Make An Arrest
253.4.1.18 Instruction On Heat Of Passion/Hot Blooded Reaction To Provocation Not Precluded By Self Defense
253.4.1.19 Self Defense Does Not Foreclose Other Defenses
253.4.1.20 Self Defense: Federal Model Instructions
253.4.2 Self Defense: Right To Instruction
253.4.2.1 Self Defense As An Inalienable Right
253.4.2.2 Self Defense: Duty To Instruct
253.4.2.3 Duty To Instruct On Self Defense When Defendant Has Not Testified
253.4.2.4 Self Defense: Showing Of Aggressive Character, Prior Threats, Etc., By Assailant Not Necessary
253.4.2.5 Applicability Of Self Defense Regardless Of Whether The Victim Died
253.4.2.6 Sexual Attack As Justification For Use Of Deadly Force
253.4.2.7 Instruction On Both Self Defense And Accident
253.4.2.8 Self Defense Relevant To Recklessness
253.4.2.9 Instruction On Self Defense Should Be Tailored To The Circumstances
253.4.3 Self Defense: Burden Of Proof
253.4.3.1 Self Defense: Prosecution Must Prove Element Of Unlawfulness
253.4.3.2 Self Defense: Specification Of Prosecution's Burden
253.4.4 Defense Of Habitation Or Place Of Business
253.4.4.1 Assailed Person Need Not Retreat From His Or Her Residence
253.4.4.2 Self Defense: Applicability of No Duty to Retreat Rule To Temporary Residents Or Guests
253.4.4.3 Self Defense: No Duty To Retreat From Dwelling: Porches, Hallways, Etc.
253.4.4.4 Defense Of Habitation: Applicability To Temporary Sleeping Areas, Place Of Business, Etc.
253.4.4.5 Self Defense: Duty Of Co-Occupants To Retreat
253.4.5 Duty To Retreat
253.4.5.1 Self Defense: Duty To Retreat -- Advent Of Firearms As Reason For Not Applying The Common Law Retreat Rule
253.4.5.2 Duty To Retreat: Knowledge That Retreat Is Available And Possible With “Complete Safety”
253.4.5.3 Self Defense: Retreat -- Defendant Must Be Able To Retreat With “Complete Safety”
253.4.5.4 Self Defense: Duty Of Retreat Requires Knowledge
253.4.5.5 Self Defense: No Obligation To Seek Protection From Public Authorities
253.4.5.6 Self Defense: No Duty To Retreat From Attack In Place Of Business Or Employment
253.4.5.7 Self Defense Federal Rule: No Duty To Retreat But Lack Of Retreat May Be Considered
253.4.6 Withdrawal (see also Self Defense By Aggressor)
253.4.6.1 Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal/Retreat
253.4.7 Character Of Defendant
253.4.7.1 Defendant's Good Character As Defense Theory
253.4.8 Character Of "Victim"
253.4.8.1 Self Defense: Victim’s Prior Bad Acts, Threats Or Character Relevant To Both Subjective Belief And Objective Reasonableness
253.4.8.2 Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character
253.4.8.3 Self Defense: Jury Consideration Of Alleged Victim’s Prior Conviction Not Limited To Impeachment
253.4.8.4 Self Defense: Character Of Alleged Victim -- Effect Of Intoxication On Propensity For Violence
253.4.8.5 Self-Defense: Rebuttal Evidence As To Victim’s Peaceful Character
253.4.9 Self Defense: Prior Acts Or Threats
253.4.9.1 Prior Acts Or Threats: Right To Instruction
253.4.9.2 Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response
253.4.9.3 Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault
253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim
253.4.9.5 Application Of Prior/Antecedent Threat Doctrine To Recent Threats
253.4.9.6 Self Defense: Consideration Of Prior Relationship Between Defendant And Victim
253.4.9.7 Self Defense: Knowledge Of Prior Acts of Violence Against Others
253.4.9.8 Prior/Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
253.4.9.9 Failure To Give Prior Threat Instruction As Reversible Error
253.4. 9.10 Failure To Request Prior/Antecedent Threat Instruction As Ineffective Assistance Of Counsel
253.4. 9.11 Instruction On Prior Threats By Gang Members
253.4.10 Self Defense: Defendant’s Belief Must Be Subjectively Held And Objectively Reasonable
253.4.10.1 Self Defense: Two-Pronged Subjective And Objective Test
253.4.10.2 Self Defense: Defendant's Belief In Peril
253.4.10.3 Self Defense: Belief May Be Reasonable Even If Mistaken
253.4.10.4 Self Defense: Vulnerability Of Defendant To Show Honest Belief In Peril
253.4.10.5 Self Defense: Abnormal Fear As Evidence Of Honest Belief Of Peril
253.4.10.6 Self Defense: Expert Testimony Regarding Defendant’s Mental Retardation
253.4.10.7 Self Defense: Fear Of Police As Relevant To Defendant’s Belief
253.4.11 Reasonable Person In Defendant’s Situation As Standard For Objective Reasonableness
253.4.11.1 Reasonable Person Standard: Consideration Of All Relevant Circumstances In Which The Defendant Is Placed
253.4.11.2 Self Defense: Finding Of “Deadly Force” Requires Consideration Of Circumstances And Intent
253.4.11.3 Reasonable Person Standard: Consideration Of Defendant's Individual Attributes
253.4.11.4 Self Defense: Reasonable Person Standard -- Consideration Of Heat Of Passion
253.4.11.5 Self Defense: Reasonable Person Standard -- Words of Provocation May Be Considered
253.4.11.6 Self Defense: Reasonable Person Standard -- Consideration Of Emotional Condition Other Than Heat Of Passion
253.4.11.7 Self Defense: Reasonable Person Standard -- Defendant Not Required To Make "Nice Judgments" About How Much Force Is Needed
253.4.11.8 Self Defense: Reasonable Person Standard: Consideration Of Physical Disabilities
253.4.11.9 Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack
253.4.11.10 Self Defense: Reasonable Person Standard -- Consideration Of Defendant's Prior Experiences
253.4.11.11 Self Defense: Reasonable Person Standard -- Consideration Of The Nature Of The Weapons Used
253.4.11.12 Self Defense: Reasonable Person Standard -- Consideration Of Physical Attributes Such As Relative Size, Strength And Age Of The Parties
253.4.11.13 Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants
253.4.11.14 Self Defense: Reasonable Person Standard -- Jury Must Put Themselves In The Defendant's Situation
253.4.11.15 Self Defense: Reasonable Person Standard -- Comparison Of Injuries Sustained By Defendant And Alleged Aggressor
253.4.11.16 Self Defense: Reasonable Person Standard -- No Duty To Retreat: Jury May Still Consider Unavailability Of Retreat
253.4.11.17 Self Defense: Reasonable Person Standard -- Must Be Based On Circumstances Known To The Defendant
253.4.11.18 Self Defense: Reasonable Person Standard -- Battered Person Syndrome
253.4.11.19 Self Defense: Reasonable Person Standard -- Consideration Of Culture
253.4.12 Consideration Of Great Bodily Injury
253.4.12.1 Definition Of Great Bodily Injury
253.4.12.2 Self Defense: Error To Instruct That Great Bodily Injury Requires More Than Ordinary Striking Of The Hands Or Fists
253.4.13 Multiple Assailants
253.4.13.1 Self Defense: Reasonable Person Standard -- Right To Defend Against Multiple Assailants Acting In Concert
253.4.13.2 Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants
253.4.14 Transferred Self Defense
253.4.14.1 Transferred Self Defense
253.4.15 Self Defense By Aggressor
253.4.15.1 Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal
253.4.15.2 Self Defense By An Aggressor, Trespasser Or Thief: Nondeadly Wrong-Doer Need Not Withdraw From Deadly Counter-Attack Or Response
253.4.15.3 Self Defense: Defendant Has No Duty To Avoid Potential Assailant
253.4.15.4 Self Defense: Definition Of Aggressor
253.4.15.5 Self Defense: Definition Of Aggressor -- Words Alone Not Sufficient
253.4.15.6 Self Defense By Aggressor: Inapplicable To Subsequent Distinct Encounter
253.4.15.7 Self Defense By Aggressor: Reference To “Unlawful Act” Is Unconstitutionally Vague
253.4.15.8 Self Defense: Definition Of Aggressor -- Words Accompanied By Hostile Acts May Be Sufficient
253.4.15.9 Self Defense Not Available To Person Committing A Forcible Felony: Forcible Felony Must Be Independent Of The Act Of Self Defense
253.4.15.10 Self Defense Instruction Should Not Use The Term "Aggressor
253.4.16 Imminent Danger
253.4.16.1 Self Defense: Brandishing Or Attempted Brandishing Of Firearm As Imminent Danger
253.4.16.2 Self Defense: Imminent Danger — Assailant Need Not Wield Deadly Weapon
253.4.16.3 Self Defense: Use Of Term "Immediate" Instead Of "Imminent" As Error
253.4.16.4 Self-Defense: Right To Instruction On Appearance Of Danger
253.5 Mutual Combat And Self Defense
253.5.1 Mutual Combat As Basis For Self Defense: Requirement Of Agreement To Fight Prior To Beginning Of Combat
253.5.2 Mutual Combat: Requirement Of Mutual Intent To Fight
253.5.3 Mutual Combat: Nondeadly Combatant Need Not Withdraw From Deadly Counter-Attack
253.6 Defense Of Others
253.6.1 Applicability Of Self-Defense When Defending Third Parties
253.6.2 Defense Of Others: Lawfulness Should Be Based On Facts Known To The Defendant
253.6.3 Defense Of Others: Defense Of Unconscious Person
253.6.4 Justifiable Homicide In Defense Of Others
253.6.5 Nonhomicidal Defense Of Self Or Others: Consideration Of Physical Disabilities
253.6.6 Defense Of Others Applies To Unborn Fetus
253.6.7 Defense Of Others: Unawareness Of The Danger By The Other Person
253.6.8 Self Defense: Defense Of Others Applies to Attack On Person Trying To Prevent Rescue
253.6.9 Defense Of Others: Intervener May Act Before Third Person Is Actually Struck
253.6.10 Defense Of Others: Intervener May Gain Right To Self Defense Not Originally Held By The Person Defended
253.6.11 Defense Of Others: Battered Person Syndrome
253.6.12 Defense Of Others: Culture
253.7 Defense Of Property/Ejectment Of Trespasser
253.7.1 Defense Of Property: Ejectment Of Trespassers From Real Property
253.7.2 Defense Of Property: Defendant Not Required to Ask Trespasser to Leave Before Using Force
253.7.3 Defense Of Property May Ripen Into Self Defense If Defense Of Property Is Met With Attack On The Person
253.7.4 Ejection Of Civil Trespasser As Defense To Criminal Battery
Chapter 254: Excuse: Duress/Coercion, Necessity, Choice Of Evils, Etc.
254.1 Duress/Coercion
254.1.1 Duress/Coercion: Miscellaneous Issues
254.1.1.1 Duress/Coercion As Common Law Defense
254.1.1.2 Distinction Between Necessity And Duress/Coercion
254.1.1.3 Duress/Coercion By Gangs: Exception To Requirement That Police Be Notified
254.1.1.4 Duress/Coercion: Applicability To Threats Against Persons Other Than The Accused
254.1.1.5 Duress/Coercion: Evidence Of Defendant's Intelligence Level To Show Inability To Resist Acts Or Threats Of Duress
254.1.1.6 Duress/Coercion: Fear Of Suicide By Third Party As Basis For Defense
254.1.1.7 Duress/Coercion: Prompt Surrender Requirement Limited To Escape
254.1.1.8 Duress/Coercion: Federal Circuit Model Instructions
254.1.2 Duress/Coercion: Burden Of Proof
254.1.2.1 Duress/Coercion: Who Has Burden?
254.1.2.2 Duress/Coercion: Defendant Need Only Raise A Reasonable Doubt
254.1.2.3 Duress/Coercion: General Reasonable Doubt Instruction Does Not Suffice
254.1.2.4 Duress/Coercion: Improper To Refer To Theory That Negates Element As "Defense"
254.1.3 Duress/Coercion: Reasonable Person Standard
254.1.3.1 Duress/Coercion: Objective Reasonable Person Standard
254.1.3.2 Duress/Coercion: Battered Person Syndrome Evidence Relevant
254.1.4 Duress/Coercion: Applicability To Homicide
254.1.4.1 Duress/Coercion Applicability To Intentional Homicide
254.1.4.2 Duress/Coercion Applicability To Unintentional Homicide
254.1.4.3 Duress/Coercion Should Be Applicable To Capital Murder Based On Prior Murder Or Death Qualifier
254.1.4.4 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
254.1.5 Duress/Coercion: Applicability To Other Specific Crimes
254.1.5.1 Imminent Danger As Defense To Vehicle Violation
254.1.5.2 Duress/Coercion: Applicability To Drunk Driving
254.1.5.3 Duress/Coercion: Applicability To Assault/Robbery/Theft Crimes
254.1.5.4 Duress/Coercion: Applicability To Kidnapping
254.1.5.5 Duress/Coercion: Applicability to Criminal Sexual Conduct
254.1.5.6 Duress/Coercion: Requirement Of Imminent Rather Than Immediate Threat
254.1.5.7 Duress/Coercion: Applicability To Escape
254.1.5.8 Duress/Coercion: Applicability To Prison Crimes
254.1.6 Imperfect (Partial) Duress/Coercion
254.1.6.1 Imperfect (Partial) Duress/Coercion As Defense To Murder
254.1.6.2 Imperfect (Partial) Duress/Coercion As Relevant To Intent To Kill, Malice, Premeditation And Deliberation
254.1.6.3 Duress/Coercion Relevant To Mental Elements Of Murder Even If Not A Complete Defense
254.1.7 Duress/Coercion: Miscellaneous Defense Theories
254.1.7.1 Duress/Coercion: Economic Duress
254.1.7.2 Duress/Coercion: "Hostage Syndrome" Defense
254.1.7.3 Duress/Coercion: Battered Person Syndrome
254.1.7.4 Duress/Coercion: Relevance Of Cultural Background
254.1.7.5 Fear Of Reprisal As Defense Theory To Contempt/Refusal To Testify/Obstruction Of Justice
254.2 Necessity, Emergency, Choice Of Evils, Competing Harms
254.2.1 Related Doctrines: Competing Harms, Choice Of Evils, Emergency, Necessity
254.2.2 Necessity As Defense To Drunk Driving
254.2.3 Imminent Danger as Defense To Vehicle Violation
254.2.4 Necessity: Homelessness As Defense To Charge Of Vagrancy
254.2.5 Defense Of Emergency
254.2.6 Necessity: Not Applicable To Civil Disobedience
254.2.7 Necessity: Battered Person Syndrome
254.2.8 Necessity: Culture
254.2.9 Necessity As Defense To Escape
254.2.10 Necessity As Defense To Possession Offenses
254.2.11 Necessity As Defense To Marijuana Offenses
254.2.12 Necessity As Defense To Hypodermic Needle Exchange
254.2.13 When The Defendant Is Relying On A Necessity (Choice Of Evils/Emergency) Defense The Jury Should Be Instructed That Motive Is Relevant
254.2.14 Exfelon In Possession Of Firearm: Necessity As Defense
Chapter 255: Mitigation Of Culpability By Partial Defense: Heat Of Passion, Imperfect Self Defense, Etc.
255.1 Cultural Background As Relevant To Defense Theories
255.1.1 Heat Of Passion/Hot Blood, Provocation: Federal Circuit Model Instructions And Notes
255.2 Extreme Emotional Disturbance
255.2.1 Extreme Emotional Disturbance Defense: Permissible Bases For Defense
255.2.2 Extreme Emotional Disturbance Defense: Applicability Of Heat Of Passion/Provocation Issues
255.2.3 Extreme Emotional Disturbance: Consideration Of Evidence As To Emotional Disturbance On Other Elements Of The Charge
255.2.4 Extreme Emotional Disturbance Defense: Heat Of Passion Instruction Too Narrow
255.3 Heat Of Passion/Hot Blood, Provocation
255.3.1 Heat Of Passion/Hot Blood, Provocation: Miscellaneous Issues
255.3.1.1 Defense Theory That Heat Of Passion/Hot Blood Was Reasonable In Light Of Defendant's Past Experience
255.3.1.2 Cultural Background As Defense Theory Regarding Heat Of Passion/Hot Blood
255.3.1.3 Heat Of Passion/Hot Blood, Provocation: Battered Person Syndrome
255.3.1.4 Heat Of Passion/Hot Blood, Provocation: Objective Standard In Light Of Defendant's Past Experience
255.3.1.5 Heat Of Passion/Hot Blood, Provocation: Consideration Of Intoxication And Mental Defect
255.3.1.6 Heat Of Passion/Hot Blood, Provocation To Negate Premeditation/Deliberation If Not Recognized As A Basis For Voluntary Manslaughter
255.3.1.7 Heat Of Passion: May Negate Required Mental State Other Than Malice
255.3.1.8 Heat Of Passion: Improper To Instruct On "Homicidal Reaction"
255.3.2 Heat Of Passion/Hot Blood, Provocation: Basis For / Right To Instruction
255.3.2.1 Heat Of Passion/Hot Blood, Provocation: Evidence Necessary
255.3.2.2 Heat Of Passion/Hot Blood, Provocation: Duty to Instruct
255.3.2.3 Heat Of Passion/Hot Blood, Provocation: Type Of Emotions
255.3.2.4 Right To Instruction On Heat Of Passion/Hot Blood When Defendant Has Not Testified
255.3.2.5 Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood
255.3.2.6 Heat of Passion/Hot Blood, Provocation: Subjective and Objective Elements
255.3.3 Provocation: Sufficiency
255.3.3.1 Provocation: Disclosure Of A Provocative Act At A Different Time
255.3.3.2 Provocation From A Party Other Than The Victim
255.3.3.3 Provocation/Heat Of Passion: Informational Words May Be Sufficient
255.3.3.4 Provocation/Heat Of Passion: Jury May Consider Insulting Words Combined With Other Provocation
255.3.3.5 Provocation: Sufficiency Of A Series of Events Over A Period Of Time
255.3.3.6 Provocation: Need Not Overpower Knowledge, Rationality And Volition
255.3.3.7 Provocation: Relevant Factors
255.3.3.8 Mutual Combat As Adequate Provocation
255.3.3.9 Sudden Quarrel Is A Type Of Provocation
255.3.3.10 Transferred Heat Of Passion/Hot Blood Provocation
255.3.3.11 When Defendant Reacts To Provocation Directed At Another Person
255.3.3.12 Provocation Need Not Be Actually Committed -- Defendant's Mistaken Belief As To Provocation
255.3.3.13 Homosexual Assault As Provocation
255.3.3.14 Provocation: Consideration Of Victim’s Intent And Ability To Physically Harm The Defendant
255.3.3.15 Provocation: Terror May Be Sufficient
255.3.3.16 Provocation: Trespass Combined With Aggravating Circumstance Sufficient
255.3.3.17 Provocation: Sufficiency Of Assault Or Battery
255.3.3.18 Provocation: Unlawful Arrest
255.3.4 Heat Of Passion/Hot Blood: Cooling
255.3.4.1 Provocation: Cooling -- No Precise Time
255.3.4.2 Provocation: Cooling Period -- Length Of The Fight Not Controlling
255.3.4.3 Provocation: Cooling -- Passage Of Time May Cause Provocation To Fester Rather Than Cool
255.3.5 Heat Of Passion/Hot Blood: Burden Of Proof
255.3.5.1 Heat Of Passion/Hot Blood: Burden Of Proof
255.3.5.2 Heat Of Passion/Hot Blood, Provocation: Improper To Instruct In Terms Of Reducing Homicide From Murder To Manslaughter
255.4 Self Defense, Partial Or Imperfect
255.4.1 Imperfect Self Defense: Miscellaneous Issues
255.4.1.1 Imperfect Self Defense: Defense Theory To Charge Of Murder
255.4.1.2 Imperfect Self Defense As Lesser Included Offense Rather Than Affirmative Defense
255.4.1.3 Imperfect Self Defense: Applicable To Unreasonable Belief In The Amount Of Force Necessary
255.4.1.4 Negligent Imperfect Self Defense As Unlawful Act Involuntary Manslaughter
255.4.1.5 Imperfect Self Defense: Based Upon Doctrine of Recklessness
255.4.1.6 Imperfect Self Defense: Unreasonable Belief May Invoke Heat Of Passion/Hot Blood Defense
255.4.1.7 Imperfect Self Defense: Use Of The Term “Partial” Self Defense To Avoid Juror Confusion
255.4.1.8 Imperfect Self Defense: Right To Expert Testimony On Psychological Profile In Support Of Subjective Belief In The Need To Use Force
255.4.1.9 Imperfect Self Defense Negates Intent To Act Unlawfully
255.4.1.10 Imperfect Self Defense: Consideration Of Battered Person Syndrome
255.4.1.11 Imperfect Self Defense: Consideration Of Culture
255.4.1.12 Imperfect Self Defense: Definition Of Imminent Danger
255.4.1.13 Imperfect Self Defense: Definition Of "Wrongful Conduct"
255.4.2 Imperfect Self Defense: Right To Instruction
255.4.2.1 Duty To Instruct On Imperfect Self Defense
255.4.2.2 Instruction On Partial Or Imperfect Self Defense Warranted If Complete Self Defense Instruction Is Warranted
255.4.2.3 Imperfect Self Defense: Applicability To Intoxication, Mental Illness Or Delusion
255.4.2.4 Imperfect Self Defense Based On Childhood Trauma And Post-Traumatic Stress Disorder
255.4.3 Imperfect Self Defense: Burden Of Proof
255.4.3.1 Imperfect Self Defense: Prosecution's Burden Of Proof
255.4.4 Specific Applications Of Imperfect Self Defense
255.4.4.1 Imperfect Self Defense: Applicable To Defense Of Others
255.4.4.2 Right To Instruction On Both Heat Of Passion/Hot Blood And Imperfect Self Defense
255.4.4.3 Consideration Of Self Defense When Deciding The "Unreasonable Risk" Component Of Recklessness
255.4.4.4 Imperfect Self Defense Applies To Unintentional Murder
255.4.4.5 Imperfect Self Defense: Applicability To Assault With Intent To Murder
255.4.4.6 Application Of Imperfect Self Defense To Attempted Murder
255.4.4.7 Is Imperfect Self Defense Applicable To Reduce Mayhem To Assault Or Battery?
255.4.4.8 Imperfect Self Defense: Applicability To Enhancements
255.4.4.9 Imperfect Defense Of Habitation
Chapter 256: Mitigation Of Culpability By Mental Psychological, Medical And/Or Physical Impairment Of The Defendant
256.1 Battered Person’s Syndrome
256.1.1 Battered Person's Syndrome: Links To Other Sources
256.1.1.1 Battered Person’s Syndrome: Cross References And Research Notes
256.1.1.2 Battered Person’s Syndrome: Federal Circuit Model Instructions And Notes
256.1.2 Battered Person Syndrome: Challenge To Required Objective Mental State Under Reasonable Person Standard
256.1.2.1 Battered Person Syndrome As Relevant To The Reasonableness Of A Person's Perception, Knowledge And Belief
256.1.2.2 Battered Person Syndrome As Reasonable Grounds For Honest Belief
256.1.2.3 Battered Person Syndrome: Improper To Instruct Jury To Consider A Reasonable Person In The Defendant's Situation
256.1.3 Battered Person Syndrome As Relevant To Self Defense Issues
256.1.3.1 Battered Person Syndrome As Relevant To Issue Of Imminent Danger
256.1.3.2 A Previously Battered Person Has The Right To Act More Quickly And Harshly in Self Defense
256.1.3.3 Battered Person Syndrome: Relevant To Both Subjective Belief And Objective Reasonableness Requirement Of Self Defense
256.1.4 Battered Person Syndrome: Miscellaneous Issues And Defense Theories
256.1.4.1 Battered Person Syndrome: Defense Theory To Subjective Mental State
256.1.4.2 Battered Person Syndrome As Relevant To Heat Of Passion And Provocation
256.1.4.3 Battered Person Syndrome As Relevant To Premeditation And Deliberation
256.1.4.4 Battered Person Syndrome As Relevant To Defenses Of Duress, Coercion, Necessity, Choice Of Evils, Etc.
256.1.4.5 Battered Person Syndrome: Reference To Minor Injury May Be Misleading
256.1.4.6 Battered Person Syndrome -- Reference To Possession Of Weapon May Be Misleading
256.1.4.7 Battered Man Syndrome
256.1.4.8 Battered Child Syndrome
256.1.4.9 Battered Person Syndrome: Admissibility Of Evidence Offered By Prosecution
256.2 Compulsive Gambler Defense
256.2.1 Compulsive Gambler Disorder As Defense Theory
256.3 Hypnotism
256.3.1 Hypnotism: Research Note
256.4 Insanity
256.4.1 Voir Dire Of Jurors As To Their Opinion Of Insanity Defense
256.4.2 Insanity: Definition In Legal and Moral Terms
256.4.3 Defense Of Insanity: Definition Of Mental Illness
256.4.4 Insanity: Involuntary Medication Of Defendant At Trial Violates Right To Present A Defense
256.4.5 Insanity: Instruction Regarding Demeanor Altering Medication
256.4.6 Insanity: Cautionary Instruction As To Defendant’s Failure To Testify At Sanity Or Mental Competency Trial
256.4.7 Insanity: Consideration Of All Evidence, Not Just The Expert Opinions
256.4.8 Insanity: Jury Not Required To Accept Expert Opinion As Conclusive
256.4.9 Insanity: Court Appointed Expert
256.4.10 Insanity: Instruction As To Consequences Of Insanity Verdict When Witness Or Prosecution Opens The Door
256.4.11 Instruction on Consequences of Insanity: Strategic Considerations
256.4.12 Insanity: Federal Circuit Model Instructions
256.4.13 Insanity Defense: Availability To Juveniles
256.4.14 Insanity: Whether Accused May Obtain Instruction On Both Insanity And Unconsciousness
256.4.15 Insanity In Capital Case: Constitutional Right To Appointment Of Expert
256.4.16 Propriety of Instruction on Consequences of Insanity
256.5 Intoxication, Involuntary
256.5.1 Involuntary Intoxication Defined
256.5.2 Involuntary Intoxication: Actual Or Constructive Knowledge Of Potential Intoxicating Effect
256.5.3 Involuntary Intoxication: Burden Does Not Shift To Defendant
256.5.4 Involuntary Intoxication May Be Complete Defense Or May Reduce Offense By Negating Required Mens Rea
256.5.5 Involuntary Intoxication: Applies To Prescription Medicine
256.5.6 Involuntary Intoxication Short Of Insanity (Unawareness Of Acts Or Consequences) May Still Negate Specific Intent
256.6 Intoxication, Voluntary
256.6.1 Miscellaneous Issues
256.6.1.1 Voluntary Intoxication: Common Law Basis For Reducing But Not Excusing The Offense
256.6.1.2 Availability Of Voluntary Intoxication As Defense: Specific/General Intent Analysis
256.6.1.3 Ineffective Assistance Of Counsel For Failure To Present Evidence Of Voluntary Intoxication
256.6.1.4 Ineffective Assistance Of Counsel For Failure To Request Instruction On Voluntary Intoxication
256.6.1.5 Voluntary Intoxication: Specification Of Mental Element To Which Intoxication Applies
256.6.1.6 Voluntary Intoxication: Jury "Must" Consider
256.6.1.7 Voluntary Intoxication: Jury Must Not Consider Impact Of Prescription Drugs In Deciding Whether Intoxication Was Voluntary
256.6.1.8 Voluntary Intoxication: Any Degree Of Intoxication Must Be Considered
256.6.1.9 Voluntary Intoxication Or Mental Impairment: Degree Of Murder
256.6.1.10 Voluntary Intoxication: Instruction As To Prosecution’s Burden Of Proof
256.6.1.11 Voluntary Intoxication: Not A Defense To Recklessness
256.6.1.12 Activation Of Mental Disease Or Insanity By Use Of Alcohol Or Drugs
256.6.1.13 Instruction That Intoxication Is Not A Defense Must Not Be Given Together With Other Intoxication Instructions Without Explanation
256.6.1.14 Intoxication Not A Defense: Error To Give In Specific Intent/Malice Cases
256.6.1.15 Intoxication Or Mental Impairment: Negation Of Knowledge Element
256.6.1.16 Voluntary Intoxication: Insulin Reaction (Hypoglycemia) As Relevant To Intoxication
256.6.1.17 Fetal Alcohol Syndrome
256.6.2 Voluntary Intoxication: Right To / Basis For Instruction
256.6.2.1 Duty To Instruct On Voluntary Intoxication As Defense Theory: Intoxication Instruction Required When Appropriate
256.6.2.2 Duty To Instruct On Lesser Included Offense Based On Intoxication As Defense Theory
256.6.2.3 Voluntary Intoxication: Evidence Must Show The Effect Of The Intoxication On The Defendant's Mental State
256.6.2.4 Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel
256.6.2.5 Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?
256.6.2.6 Intoxication: When Combined With Mental Impairment
256.6.2.7 Intoxication: Impact Of Physical Trauma
256.6.2.8 Intoxication As Defense To Accomplice Liability
256.6.2.9 Voluntary Intoxication: Federal Circuit Model Instructions And Notes
256.6.3 Voluntary Intoxication: Experts
256.6.3.1 Experts: General Principles
256.6.3.2 Voluntary Intoxication: Expert Testimony Regarding Defendant's Formation Of Mental State
256.6.3.3 Expert Testimony As To Combined Effects Of Alcohol And Cocaine
256.6.3.4 Expert Testimony Required For Drug Intoxication
256.7 Mental, Medical Or Physical Impairment Of Defendant
256.7.1 Mental Impairment: Miscellaneous Issues
256.7.1.1 Mental Impairment To Negate Mental State Elements
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