duress criminal law problem question

The distinction is as follows: if the defendant doesnt know they will make him intoxicated, it is deemed to be involuntary intoxication. The new phrase severe mental illness places an emphasis on medical diagnosis as [18 marks]. also said: If the drunken man is so drunk that he does not know what he is doing, he has a In Hennessy (1989) the defendant was diabetic and had forgotten to take his insulin, and whilst suffering from high blood sugar (hyperglycaemia) he committed several driving offences. The issue before the Court is whether a criminal defendant raising an affirmative defense of duress must bear the burden of persuasion and prove duress by a preponderance of the evidence, or whether, once the defendant has raised the defense, the government must bear the burden and prove beyond a reasonable doubt that duress did not exist. Even if the defendant is very young (e.g. reasonably regard himself as responsible [wi, Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. Answer Structure for Defence ( Criminal LAW) - CRIMINAL LAW DURESS AND In Mobilio (1991) a doctor was performing a medical examination for sexual gratification as opposed to medical reasons, but the nature and quality of the act remained the same. The High Court of Australia took an alternative view in Stapleton (1952), believing that the morality of the act was more important than its legality. For anyone who is not a mandated reporter , you may still report suspected elder or vulnerable adult abuse, neglect, or exploitation to Adult Protective Services by calling 855-444-3911. If youre not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! order); a supervision order; or an order for his absolute discharge. This must be a result of his defect of reason they must be connected. It can also be raised as a A reasonable fear of imminent death or serious bodily harm, Through the words or actions of another person, With no reasonable opportunity to escape the threat, Aggravating and Mitigating Factors in Criminal Sentencing, Receiving Immunity for Testimony in a Criminal Case, Mistake of Fact or Law Defense in Criminal Cases, Expungement and Sealing of Criminal Records, The Mental State Requirement in Criminal Cases, Domestic Violence Restraining Orders Laws and Forms: 50-State Survey. Chapter 6 Multiple choice questions - Criminal Law, 16e Student The defence of intoxication is applicable to all crimes with a mens rea. standards of honest and reasonable men. Duress problem question plan - Malcolm lost his successful - Studocu Duress- lecture notes - Duress Key points Here we are looking at These elements are typically outlined in the criminal statute that defines the offense. Consent is, however, a defence to lawful intercourse and other lawful playful/sexual behaviour even if it unexpectedly and accidentally results in death Slingsby (1995). intent crimes). Id. Insanity is available as a defence To export a reference to this article please select a referencing style below: Free law resources to assist you with your LLB or SQE studies! Id. A pre-emptive strike is surprisingly acceptable as was held in Beckford (1988), and Courts frequently assigned the burden of proof to the party seeking to establish the less likely or more unusual events. it is reasonable to believe that the threat will be acted upon. KF306 .B87 Criminal defense ethics 2d : law and liability. (2005) at 10. duress | Wex | US Law | LII / Legal Information Institute Studies suggest that costs associated with criminalizing homelessness outweigh the costs of housing people. sport). Id. Chapter 7. Criminal organizations, gangs or drug rings all carry Off the ball incidents (e.g. case law, and it is the legal definition that is applied in law. Consent is allowed as a defence to surgery as held in Corbett v Corbett (1971). The rules of intoxication are as follows: (1) it is a full defence if the defendant could not form the required intention ; However, he is arguing that he was threatened into committing the crime. any duress must have ceased to operate, in which case the judge would be entitled to Under the established Fifth Circuit rule, the defendant bears the burden of proof for this defense, and must prove each element of the defense by a preponderance of the evidence. United States v. Dixon, 5th Cir. Id. consider the defendants point of view. Lord Lane CJ commented that it was necessary and desirable for the jury to Return to Criminal Law, 16e Student Resources; Chapter 6 Multiple choice questions. This means that the judge and jury will evaluate the evidence according to an objective standard. of basic intent, It is a reckless course of conduct and recklessness is enough to defendant may defend himself or another. Threats to expose a secret sexual orientation are also insufficient as held in Singh (1974) and the defence of duress draws a clear line between threats to property and threats to the person, as held in Lynch (1975). Details for: Ethical problems facing the criminal defense lawyer This is because intention is present and recklessness is also present. It is not necessary to seek police protection if this is not possible at the material time, as confirmed by Hudson and Taylor (1971). Id. [18 marks]. The spread of disease was a particular concern for the Lords, although following Dica According to Burns (1974), taking morphine to calm a health complaint will be deemed to be involuntary intoxication as long as the defendant did not appreciate the effect it would have. follow instantly but perhaps after an interval. The jury would need to consider whether the conduct was obviously late and/or violent and not simply an instinctive reaction, error or misjudgement. weak in body or mind, inexperienced, or in a state of dependence.. Criminalization of homelessness doesn't address the root of the problem subjective test the jury must put themselves in the defendants position. 1.The term "criminal law" refers to the body of laws that define criminal offenses and the punishments that can be imposed for committing them, whereas the term "civil law" refers to the body of laws that govern the relationships between individuals and organizations. Sometimes a defense of duress can arise from a threat to someone close to the defendant, but usually it involves the defendant directly. This was confirmed in The law was updated by Hasan (2005) when Lord Bingham said: the defence of duress is excluded when as a result of the accuseds voluntary Id. A pre-emptive strike is surprisingly acceptable as was held in Beckford (1988), and issuing threats of violence to deter the attacker may constitute self-defence as was held in DPP v Bailey (1995) and Cousins (1982). for Petr at 3. Consent may be implied by law (i.e. Threats towards the defendants wife and children have been said: the violence of sado-masochistic encounters involves the indulgence of cruelty by He is supposed to give the money to Deans right hand man Jay who takes the proceedings and then pays Aaron a cut out of that. Valium tablets which are designed to calm a patient will also be deemed to be involuntary intoxication if they cause completely unexpected effects as seen in Hardie (1985). Because insanity is only concerned with internal factors, this can include medical conditions such as diabetes. Although most normal criminal cases will likely be unaffected, cases in which the evidence could point either way may well end up with an opposite result as compared to before this case. immediately or almost immediately as in Hasan (2005). Broadmoor). is ordinarily used, the mental faculties of reason, memory and understanding. The threat made towards the defendant must be operative when the offence is committed. assumed) in some situations. Duress and Undue Influence Lecture - Example Questions - LawTeacher.net A threat may be imminent but not held in DPP v Bailey (1995) and Cousins (1982). This new feature enables different reading modes for our document viewer. Criminal 2019 PQ 3 - Problem Question Revision - Studocu Majewski (1977) Lord Simon said: the public could be legally unprotected from unprovoked violence where such If the judge decides that there is evidence of insanity, he leaves it to the jury The prosecution may not need to disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it. committed. For the law to understand not only how the Id. In her defense, Dixon raised the affirmative defense of duress, which exonerates a defendant of guilt for certain crimes if he or she can show that coerced into committing the crime under the threat of immediate harm. Common Law v MPC. of duress withdrawn as held in Gill (1963). The other members of the horseplay must genuinely believe that their friend is consenting as held in Aitken and others (1992). The defendant bears the burden of introducing evidence of duress and it is then up to the prosecution to prove beyond all reasonable doubt that the defendant was not acting under duress. A threat to damage or destroy property is insufficient as no defence); and (3) involuntary intoxication is not a defence if the required mens rea However, insanity is not available to strict liability crimes (i.e. Community life allows for implied consent (i. in situations of horseplay). Discuss Aarons ability to raise the defence of duress. Model Answers - Problem questions in Criminal Law - Studocu Model Answers to Potential Exam Questions Chapter 7. weak but to make it just.. Heard (2007). This rule is Michael Daniels. organisation or gang which he knew might bring pressure on him to commit an Dealing with the problem question of Defence in Criminal Law criminal law duress and necessity (defence) answer structure for pq take look at the following. . A victim can be tricked by being misinformed about the nature or quality of the act. The wickedness of his mind before he got drunk is enough to It follows that if a defendant chooses to mix with very bad company then he should foresee the risk of being threatened. intent crimes. high risk of injury, and the list includes: sports, surgery, ritual circumcision, tattooing morality as raised in the Wolfenden Report (1957), which stated that laws relating to The defendant becomes voluntarily intoxicated when he chooses to consume an Lawton LJ stated in Quick: The fundamental concept is of a malfunctioning of the mind caused by disease. curable or incurable, transitory or permanent.. Necessity involves a choice between two bad alternatives that could not be avoided, which arose from the circumstances rather than the actions of a specific person. [Question(s) presented] | [Issue(s)] | [Facts] | [Discussion] | [Analysis]. In Lynch v DPP of Northern Ireland (1975) Lord Morris said: It is proper that any rational system of law should take fully into account the standards of honest and reasonable men. In addition to the historical development of the duress defense, the government argues that developments under modern federal law suggest that the burden should remain with the defendant. Once you have done this, try and apply the defence using the case law we have looked at in these notes. insufficient as held in Singh (1974) and the defence of duress draws a clear line The majority rule followed in the Second, Sixth, Seventh, Eighth and Tenth Circuits states that while the burden to produce evidence of duress lies on the defendant, the burden of persuasion to disprove a duress defense lies on the prosecution. others (1987). This hugely important case established that consent was a valid Tutorial 4 (Intention) Law of contract 100% (2) Tutorial 4 (Intention) 6. It is a supportive of the law to allow unexpected threats of violence to fall in the defendants favour. Since this defense does not go to the mens rea element of the offense, the government does not have to prove beyond a reasonable doubt that duress does not exist; rather, the defendant must prove by a preponderance of the evidence that duress did exist. The victim must be able to understand the act consented to, as held in Burrell v Harmer (1967). To use the defence of duress by threats, the defendant is admitting that he committed judgment, confusion or forgetfulness. view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes Aaron pays up by giving him all the money from his drug sales that week. Under Bailey, even if she committed the illegal acts under threat of force, that would not change her knowledge of the facts. This rule is enshrined in s.1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) A judge has discretion as to how to sentence a legally insane defendant under s.5 of the Criminal Procedure (Insanity) Act 1964: a hospital order (with or without a restriction order); a supervision order; or an order for his absolute discharge. Brown listed lawful exceptions to the rule, where consent is allowed despite a high risk of injury, and the list includes: sports, surgery, ritual circumcision, tattooing and ear-piercing. Any force used must be necessary from the defendants perspective, and it does not matter that the defendant was mistaken as to the necessity. The requirement for an actionable claim of duress in this context is that the nature of the threat must be sufficient to amount to duress, and the threat must have forced the claimant into the contract. a. Preponderance of the evidence b. Duress by Threats - Lecture notes 2 - Duress by Threats - Studocu being almost unconscious) for the defendant to not even form the recklessness I need help filling out a Motion of appeal to a duress plea Appealed from: United States Court of Appeals, Fifth Circuit. defence to reckless driving as in Renouf (1986) and a defence to dangerous driving as There is a presumption of sanity in law, and as a result of this presumption, it is for the defence to prove insanity, but only on a balance of probabilities. Where an unlawful act occurs in sport, it shall be judged independently of the rules as an unlawful act in itself as held in Bradshaw (1878) and Moore (1898). This was held in Horseferry Road Magistrates Court ex parte K (1996). was also directly applied in Emmett (1999) to a heterosexual couple engaging in sado- A drunken intent is nevertheless an intent.. In addition, duress requires the defendant to show that they had no alternative to committing the crime. The Brown case therefore allows both assault and battery to be consented to in sexual situations as well as in general everyday life. This makes the consent fully informed. Necessity involves a choice between two bad alternatives that could not be avoided, which arose from the circumstances rather than the actions of a specific person. In criminal law, actions may sometimes be excused if the actor is able to establish a defense called duress. This was confirmed in Majewski (1977). If, however, the defendant knows that they will have an intoxicating effect on him, he is voluntarily intoxicated. Tutorial work - duress and necessity - 7th Tutorial Duress and Necessity Duress Steps: 1. Was there - StuDocu 7th tutorial duress and necessity duress steps: was there an immediate threat(hasan case, although note hudson taylor case) of death or serious violence. crime. R v Jordan [1956]: D stabbed V. V was almost healed when he was admitted to hospital and was given antibiotics. The lords are driven by issues of public interest when deciding extremely violent sexual gratification cases. If battered women are indeed given a freer hand to escape their abusers via criminal acts or to escape liability for criminal acts forced upon them, then they might be less inclined to seek relief through legal means, such as by seeking help before being forced to commit a crime, or by seeking a legal means of escape. If the judge decides that there is evidence of insanity, he leaves it to the jury to apply, as seen in Walton (1978). Cheshire [1991]: D shot V at a chip shop. Multiple-Choice Quiz - Oxford University Press a) Duress is a defence to murder but there must be a distinction made between principal and secondary parties b) Duress is not a defence to murder whether as a principal or secondary party c) Duress is a defence to murder only when the principal party has been charged with murder d) Duress can always be used as a defence to murder Question 5 This hugely important case established that consent was a valid defence to assault and battery but nothing beyond that, unless it was a qualified legal exception (e.g. Lord Jauncey in Gotts could: see no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld from a murderer.. duress criminal law criminal law duress lecturer: professor peter whelan office: 2.16, liberty building academic support hours: usually monday pm and tuesday . thought processes) as confirmed by Kemp (1957), in which Devlin J said: The law is not concerned with the brain but with the mind, in the sense that mind is ordinarily used, the mental faculties of reason, memory and understanding. Duress and Necessity Lecture - Example Questions - LawTeacher.net In Shannon (1980) a conviction for murder was quashed when the trial judge It resembles self-defense in some respects, since it arises from a threat of imminent death or serious bodily injury, and it requires that the defendant had a reasonable fear that the threat would be carried out. is has been clarified by section 3 of the Criminal Law Act 1967: Criminal Procedure (Insanity) Act 1964: a hospital order (with or without a restriction at 20. A threat may be imminent but not necessarily immediate, as held in Abdul-Hussain (1999), but the threat must follow immediately or almost immediately as in Hasan (2005). Controversially in Burgess (1991), the defendant attacked his friend during a sleepwalking episode. If the ordinary man would have been able to resist the threat, it is very unlikely that the defendant will be able to rely on duress as a defence. Id. Medical treatment was grossly negligent. A murder conviction still requires indefinite hospitalisation at a high security hospital (e.g. Such violence is injurious to participants and In Fitzpatrick (1977) the trial judge stated that: if a man chooses to expose himself and still more if he chooses to submit himself to illegal compulsion, duress may not operate even in mitigation of punishment., where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence., the defence of duress is excluded when as a result of the accuseds voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.. General Criminal Questions: 517-388-9451; Hate Crimes/Domestic Terrorism: 313-456-0040; Human Trafficking: 313-456-0131; . Contract Law Problem Question Summary 2016. Former attorney withheld from the motion my witness statements of his associate attorney used duress tactics to force me to sign out anxiety and fear of financial ruin. In cases brought under civil law, the plaintiff . Chapter 8. fact that the defendants mind was affected by drink so that he acted in a way in which applying this defence. raised within the problem question. of crime, or in effecting or assisting in the lawful arrest of offenders or suspected for Petr at 14. This was held in Horseferry Road Magistrates Court ex parte K (1996). If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. Simply because an alcoholic drink has a stronger effect than expected does not mean that the defendant was involuntarily intoxicated as held in Allen (1988). Instead, many of the affirmative defenses created by Congress place the burden on the defendants. In Fitzpatrick A defendant may thus protect himself in the event that he anticipates violence. The defendant is convicted but the sentence he would have received is halved due to duress correct incorrect. The Common Law has always been somewhat receptive to pleas of duress as an excuse to breaking the criminal law. The threat made towards the defendant must be operative when the offence is Criminal Law (LL108) Campus to Clinic 5; Tort Law (LX2080) Criminal Law (LAW.104x) . Section 3 of the 1967 Act goes on to say that it replaces some of the common law In Rashford (2005) Dyson LJ said: it is common ground that a person only acts in self-defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and if the amount of force that he uses is reasonable..