duress criminal law problem question duress criminal law problem question

The spread of disease was a particular concern for the Lords, although following Dica If the NACDL and NCDBWs fears are bourn out, then a ruling in favor the Fifth Circuits dual burden rule will result a gutting of the application of the more defendant-friendly negation duress defense. 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). did unexpectedly materialise and if it put the defendant into a dilemma in which a The duress defense claimed in this case is not the prototypical gun to the head situation as often seen in movies, but is an example of the far more subtle battered woman syndrome (BWS) variety. The illegal use of coercion. The Law Commissions Draft Criminal Code (1989) proposed to replace the term insanity with mental disorder as follows: Clause 35(1): A mental disorder verdict shall be returned if the defendant is proved to have committed an offence but it is proved on the balance of probabilities that he was at the time suffering from severe mental illness or severe mental handicap. One on duress (from tutorial three) and another on non-fatal offences against the person. The voluntary act of becoming intoxicated will therefore constitute the reckless behaviour required for the offence to be made out. must decide whether an opportunity to escape presented itself, and in deciding this, was also directly applied in Emmett (1999) to a heterosexual couple engaging in sado- Some other person, for whose safety D would TEST FOR DURESS (i) Was . Where an unlawful act When he goes to Jay with no money Jay is livid and tells Aaron that he must pay the money back by the next morning, even if he has to steal it, or he will be killed. According to Clegg (1995), if force is grossly excessive and disproportionate then it is excessive and the defence will fail because it will be withdrawn from the jury. 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. itself as held in Bradshaw (1878) and Moore (1898). Elder Abuse, Neglect, and Exploitation - Michigan However, if an alcoholic drink (e.g. 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). THE THREAT. Answering Criminal Proposition - Answering Questions in Criminal Law Thomas Wright is a convicted felon, so he was unable to purchase the guns for himself. If a defendant becomes involuntarily intoxicated on harmless sleeping pills, evidence must still be provided to prove that he did not form his own mens rea OConnell (1997). The distinction is as follows: if the defendant doesnt know they will make him intoxicated, it is deemed to be involuntary intoxication. To use the defence of duress by threats, the defendant is admitting that he committed In Hudson and Taylor (1971) it was established that the threatened injury need not at 31. In Ali (2008) Dyson J said: The core question is whether D voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.. def ences of duress, necessity or the use of for ce in privat e or public defenc e can be. Lord Lane CJ commented that it was necessary and desirable for the jury to as "when an accused claims that a person or set of circumstances forced them to act in an unlawful way that would not have been their free choice". . In Williams (1987) Lord Lane CJ said: The question is, does it make any difference if the mistake of [D] was an In Majewski (1977) Lord Elwyn-Jones LC said: His course of conduct in reducing himself by drugs and drink to that condition in my Chapter 6 Multiple choice questions - Criminal Law, 16e Student constitute the necessary mens rea in assault cases.. One essential component of a duress defense is the immediacy requirement, which requires that for a defendant to claim duress, he or she must be under immediate threat of death or bodily injury. weak in body or mind, inexperienced, or in a state of dependence.. Contract schedule 2021-22. A person may use such force as is reasonable in the circumstances in the prevention 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. A pre-emptive strike is surprisingly acceptable as was held in Beckford (1988), and 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. *You can also browse our support articles here >, The defence can be applied in relation to burglary as it is not one of the excluded offences. standards of honest and reasonable men. defence to reckless driving as in Renouf (1986) and a defence to dangerous driving as In Ali (2008) Dyson J said: The core question is whether D voluntarily put himself in the position in which he Multiple Choice Questions and Answers Fractured NOH - clinical pattern sheet Company - Piercing the corporate veil Chapter I - Summary Project Management: the Managerial Process Assignment 7 Human Reproduction, Growth ad Development revision Guide Compare and contrast the three faces of Power Trusts - Formalities curable or incurable, transitory or permanent.. Hudson and Taylor (1971). Branding a persons body (i.e. Parker LJ said: There was no evidence that it was known to [D] or even generally known that the taking of valium in the quantity taken would be liable to render a person aggressive or incapable of appreciating risks. 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). A malfunctioning of the mind caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.. This rule is a common law rule that stated that a person could not be prosecuted for homicide unless the victim died within a year and a day of the act that was responsible for the fatal injury. Oxbridge notes | Problem Questions Notes Dica (2004) was confirmed in Konzani (2005) which had very similar facts. grievous bodily harm). Most of the Lords in Brown were persuaded by issues of public Two registered medical practitioners must provide at 31. . Any force used must be necessary from the defendants perspective, and it does not matter that the defendant was mistaken as to the necessity. activity, he will not be able to argue duress when he is threatened. Id. However, a threat of death or serious injury does not need to be the only reason why In Attorney-Generals Reference (No. for Petr at 6-7. offenders or of persons unlawfully at large. Dixon further alleges that she was the victim of a continual pattern of abuse, including four or five beatings administered on the week of the gun purchases, although she admitted that she had never sought help. Id. Lawton LJ stated in Quick: The fundamental concept is of a malfunctioning of the mind caused by disease. Consent is allowed as a defence to surgery as held in Corbett v Corbett (1971). Where a criminal defendant raises a duress defense, whether the burden of persuasion should be on the government to prove beyond a reasonable doubt that the defendant was not under duress, or upon the defendant to prove duress by a preponderance of the evidence? condition of the brain is irrelevant and so is the question whether the condition is If the judge decides that there is evidence of insanity, he leaves it to the jury to apply, as seen in Walton (1978). 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. The defendant becomes voluntarily intoxicated when he chooses to consume an This rule is This is in order to protect the vulnerable members of society and to prevent perpetrators from simply using consent as a defence to all harms. If the Supreme Court rules in favor of the United States, and establishes a unified rule based on the Fifth Circuits minority rule, the National Association of Criminal Defense Lawyers (NACDL) and the National Clearinghouse for the Defense of Battered Women (NCDBW) suggest in their amicus brief that the flexibility of the Fifth Circuits analysis will lead to inconsistent and unreliable jury verdicts. The correct defence was insanity, as Lord Diplock confirmed in his judgment: it matters not whether the impairment is organic or functional, or permanent or transient. was confirmed in Shepherd (1987), where Mustill LJ said: The logic which appears to underlie the law of duress would suggest that if trouble Since honest belief clearly negates intent, the reasonableness or otherwise of that belief can only be evidence that the belief/intent was held.. This question has some similarities to issues raised in question 1. insanity comes from a very old case MNaghten (1843), which reads as follows: To establish a defence on the ground of insanity it must be clearly proved that, at the it is reasonable to believe that the threat will be acted upon. Threats to expose a secret sexual orientation are also Roach: Card & James' Business Law 4e Problem and essay questions. between threats to property and threats to the person, as held in Lynch (1975). While BWS is not directly in issue in this case, the result of Dixon v. the United States will indubitably be of great interest to BWS victims and support groups. Section 3 of the 1967 Act goes on to say that it replaces some of the common law rules and the courts have since used both statute and common law together, as was established in Cousins (1982). Consent will not be real if the victim lacks capacity as held in Howard (1965). In jurisdictions where the burden of proof of duress shifts from the defendant to the prosecution, the prosecution will have a much tougher job of convicting defendants who raise duress defenses. First, the defendant will likely have more access to information supporting the duress defense. In Aaron knows that his brothers girlfriend Susie is very well off and has seen her wear a diamond necklace. To use the defence of duress by threats, the defendant is admitting that he committed the actus reus of an offence and that he had the required mens rea when carrying out the offence. You can also view an introductory document providing general guidance on answering the essay and problem questions. Criminal Procedure (Insanity) Act 1964: a hospital order (with or without a restriction The case of Majewski (1977) established this doctrine clearly. the question of [the victims] proximity. It follows that if a defendant chooses to mix with very bad company then he should Aaron approaches the gang leader, Dean and tells him he wants in. insufficient as held in Singh (1974) and the defence of duress draws a clear line This burden of proof rule sits at the heart of Dixons Supreme Court caseOn appeal, Dixon acknowledged the established nature of the Fifth Circuits rule, but contended that the Fifth Circuit should reconsider its rule both in light of the fact that their rule is in a minority among the circuits, and in light of the argument that a duress defense negates the mens rea, or intent, element of a crime and thus extends the prosecutions constitutional burden of proving guilt beyond a reasonable doubt to duress defenses. Id. threatened as held in Conway (1988) and a spouse may threaten to harm herself as consider whether the conduct was obviously late and/or violent and not simply an honest. 1. However, insanity is not available to strict liability crimes (i.e. Br. If a defendant intentionally becomes intoxicated in order to commit a crime, this is duress | Wex | US Law | LII / Legal Information Institute the jury should have regard to: the defendants age; the defendants circumstances; Answering Questions in Criminal Law (Problem questions) Problem questions are designed to test the student's ability to: Identify legal issues relevant to the problem; Digest and understand legal sources and their relevance to the problem; Determine how these legal principles can apply to the problem at hand; Explain in clear terms what the 'solution' to the problem may be, taking into . In Fitzpatrick The burden of proving lack of consent rests with the prosecution as was established in Donovan (1934): (3) the consent must be fully informed (i.e. Id. 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. at 20. It is, however, available on a charge . Many of the events that provide the basis for the duress claim occurred before the events that caused the government to become involved with the case, and thus it may be more fair to place the burden on the party with easier access to the necessary information. no defence); and (3) involuntary intoxication is not a defence if the required mens rea Duress- lecture notes - Duress Key points Here we are looking at In Williams (1987) Lord Lane CJ said: The question is, does it make any difference if the mistake of [D] was an unreasonable mistake? If a defendant voluntarily chooses to join a dangerous Problem and essay questions - Oxford University Press follow instantly but perhaps after an interval. He decides to break into Susies house that night and steal the necklace. The primary authority for Dixons argument is Davis v. United States, 160 U.S. 469 (1895), in which the Court held that once a defendant has produced evidence of insanity, an affirmative defense, the government must then prove that the defense did not create a reasonable doubt, since the insanity defense address the mens rea element of the charged crime. This was confirmed in bodily harm for no good reason.. The courts have viewed this as reckless behaviour and it will suffice as the mens rea have committed an offence but it is proved on the balance of probabilities that he was Defences - Duress and Necessity | The Crown Prosecution Service lesson based notes in good strong detail and good organisation duress threats graham test was impelled to act as he did because he feared death or serious. for Petr at 14. Branding a 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). is ordinarily used, the mental faculties of reason, memory and understanding. week contract: duress, undue influence and Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew My Library The MNaghten rules were rejected in the Canadian case of Parks (1992), in which sleepwalking was found to be a sleep disorder instead. Chapter 4. reasonably regard himself as responsible [will suffice as well as immediate family].. to have foreseen the risk of being subjected to any compulsion by threats of violence.. was formed. the amount of force that he uses is reasonable.. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01. to any crime. In Wilson (2007), Lord Phillips CJ confirmed: Our criminal law holds that a 13-year-old boy is responsible for his actions and the rule that duress provides no defence to a charge of murder applies however susceptible D may be to the duress.. Id. It is not necessary to seek police protection if this is not possible at the material time, as confirmed by Hudson and Taylor (1971). ? for example, spanking in Donovan (1934), but it is not in the public interest that accepted by the courts, for example in Ortiz (1986). Instead, the problems are based on the majority principles, with notations as to signicant minority views or developing modern trends. behaviour required for the offence to be made out. 10 Report Document Comments Please sign inor registerto post comments. specific intent crimes) but not to crimes where recklessness will suffice (basic intent crimes). Homeless people are also 11 times more likely . 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. http://docket.medill.northwestern.edu/archives/003461.php, National Association of Criminal Defense Lawyers. 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. How to apply duress of threats and duress of Circumstances to a potent evidence that only reasonable defensive action had been taken., C N C i i l L bli h d b H dd d i Li Ch k k 2012. far. Sometimes courts combine these defenses, but technically they are separate. Id. Defence problem questions are not like other problem questions on offences where you establish the actus reus and mens rea and then apply them to see if they are fulfilled, so it may take a few attempts at them to adjust your style before you feel really confident at tackling them! There is no requirement that the defendants belief should be reasonable according to a reasonable man test either. prosecuted despite consent if the harm is intended to cause more than transient Insanity is available as a defence A threat to damage or destroy property is insufficient as for example in Bromley (1992). The threat made towards the defendant must be operative when the offence is committed. The defendants fear must be reasonable and specific to the situation. The jury would need to he was doing, or, if he did know it, that he did not know he was doing what was A defendant also cannot present a duress defense if they were responsible for getting into the situation that resulted in the threat of death or serious injury. The prosecution may not need to disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it. Guidelines 2011. for Petr at 11. opposed to a legal definition of a medical condition. at 29. necessary intention was there. The legal definition of Criminal organizations, gangs or drug rings all carry the risk of violent threats. As Dixon conceded, Congress has rejected Davis by statute, placing the burden on defendants to prove insanity by clear and convincing evidence. 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. Instead, many of the affirmative defenses created by Congress place the burden on the defendants. The lords are driven by issues of public interest when deciding extremely violent wrong.. Finally, requiring the government to prove that duress existed places presents high social costs, as the reasonable doubt standard would overprotect defendants while jeopardizing important interests in punishing those who violate the law. at 23. The weight of the evidence required to prove a criminal law violation is. While duress is not a justification for committing a crime, it can serve as an excuse when a defendant committed a crime because they were facing the threat or use of physical force. drugged) but forms his own intention, then he has the required mens rea for a conviction. 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. Duress is not available for the murder of the police officer but will be relevant for the . within the rules, but prize fights are conducted outside the rules and are unlawful as In Shannon (1980) a conviction for murder was quashed when the trial judge Although this does not speak directly to the burden of proof for affirmative defenses, Congressional intent is very significant because Congress has plenary authority to create affirmative defenses, and it has neither adopted a duress defense nor placed the burden of persuasion on the government. Aaron is a little scared as he knows of the gangs reputation but Dean tells him as long as he stays on the right side of him he has nothing to worry about. Last reviewed October 2022 high risk of injury, and the list includes: sports, surgery, ritual circumcision, tattooing General defences. Cheshire [1991]: D shot V at a chip shop. Id. It is commendable that family members can count for consideration by the jury when Good luck! Majewski (1977). sexual gratification cases. [18 marks]. KF306 .A84 1995 ACTEC commentaries on the model rules of professional conduct. at 18. they will submit a warrant request to the prosecutor with suggested criminal charges. at 11. Understand how to apply the specifics of the defence of duress in the context of a problem question; and; Be able to evaluate critically the law in this area. This threat must include immediate serious injury or death to himself or others in KF306 .B87 Criminal defense ethics 2d : law and liability. Dixon v. United States (05-7053) | Supreme Court Bulletin | US Law These elements are typically outlined in the criminal statute that defines the offense. The defendant will typically argue that his victim consented to the harm that was inflicted. This is despite the fact that a young teenager is probably very susceptible to threats from his father. In the former case, the burden of proof remains with the prosecution, but in the latter, the burden of proof is shifted to the defendant. PDF QUESTIONS & ANSWERS: CRIMINAL LAW - Carolina Academic Press judge has discretion as to how to sentence a legally insane defendant under s of the 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). It is commendable that family members can count for consideration by the jury when applying this defence. By looking at exam style questions you are taking the right steps towards getting properly acquainted with them and when you have done enough it will become second nature! Here liability is clear, and our focus is criminal defences. (2) the reasonableness of the mistake is used irrelevant. 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. 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. In Bratty (1963) Lord Denning In Wright (2000) Kennedy LJ said: It was both unnecessary and undesirable for the trial judge to trouble the jury with PDF Chapter 14: General defences Problem Questions - Oxford University Press A defendant does not have to express a reluctance to fight before defending himself as was held in Bird (1985), and a defendant may make preparations to defend himself as was held in Attorney-Generals Reference (No. to manslaughter. In Tabassum (2000) the defendants convictions for indecent assault were upheld because the women were consenting for medical purposes, meaning that they had been deceived as to the quality of the act. Take a look at the following scenario and identify any material facts as you read. Id. Id. at 21. Guidelines 2011. For example, if someone is charged with the offense of burglary, the elements of that offense might . should not be denied to him., see no justification in logic, morality or law in affording to an attempted murderer circumstances he honestly believes that it is necessary for him to defend himself and if duress criminal law criminal law duress lecturer: professor peter whelan office: 2.16, liberty building academic support hours: usually monday pm and tuesday . However, he is arguing that he was threatened into committing the crime. Common Law v MPC. This means that it is active at the time of the actus reus of the offence. Broadmoor). 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.. Such violence is injurious to participants and Since honest belief clearly negates intent, the reasonableness or The threat must occur in the present, rather than the past, although sometimes a threat of future harm may support the defense. express a reluctance to fight before defending himself as was held in Bird (1985), and If a defendant mistakes the facts before him, it is unlikely that he had the required mens rea. A person may still arm himself Id. in sports, on public transport etc). The defendant is convicted but the sentence he would have received is halved due to duress correct incorrect. Social Science Courses / Criminal Justice 107: Criminal Law Course / Justification & Excuse Defenses Chapter Duress Defense: Definition, Laws & Examples - Quiz & Worksheet Video was held in Coney (1882). Case is exceptional. he may find himself threatened. presents itself, the defendant must do so. Dixon argues that the government should bear the burden of persuasion because the duress defense negates the mens rea, or guilty mind, element of the crime, and under the Due Process Clause of the Fifth Amendment the government must prove all elements of a crime beyond a reasonable doubt, including disproving any defenses. As a result of Gallagher, Dutch courage is not a defence to specific intent or basic intent crimes. Sexual gratification does not generally render the infliction of slight harm unlawful for example, spanking in Donovan (1934), but it is not in the public interest that people should try to cause actual bodily harm to each other for no good reason as held in Brown (1994). intoxicating substance with the knowledge that it will alter his ability to think clearly. The main difference is that duress means that the defendant committed a crime because someone directly forced them to do it. The government also distinguishes the insanity defense involved in Davis from the duress defense asserted by Dixon. There is a presumption of sanity in law, and as a result of this presumption, it is for Solved by verified expert. Because most of the coercive conduct involved in a duress defense constitutes a criminal defense, the person alleged to have made the threat will assert his Fifth Amendment right against self-incrimination. (2005) at 10 (quoting United States v. Willis, 38 F.3d 170, at 179). it knowing it is a wrong thing to do, and then gets himself drunk so as to give himself The voluntary act of becoming intoxicated will therefore constitute the reckless Morgans application to rape has been overruled by the Sexual Offences Act 2003) he would not have done had he been sober does not assist him at all, provided that the In Bolduc v Bird (1967) a medical assistant turned out not to be qualified, but this did not alter the nature and quality of the act. avail himself of the defence.. 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. A passenger in a car can be He starts going to the casino and one night he loses massively at poker and ends up owing a lot of money to another player.