Defenses - Next Generation Bar Exam

1. Under the majority rule, when is a person justified in using force to defend another?

   When the person reasonably believes the other would be justified in using such force in self-defense. The older alter-ego rule made the intervenor's right depend on the third person's actual right.

2. An unarmed man smaller than the defendant attacks him with his fists. The defendant, knowing he faces no serious harm, shoots and kills the attacker. On what ground does self-defense fail?

   Deadly force was not reasonable against a nondeadly threat. The force used must be proportional to the threat reasonably perceived.

3. Under the subjective entrapment test used in federal courts, what must be shown?

   Government inducement of a defendant who was not predisposed to commit the crime. Predisposition is measured before the government's first contact.

4. Under the common-law infancy defense, what is the capacity of a child under age 7?

   Conclusively presumed incapable of committing a crime. Children from 7 to 14 were rebuttably presumed incapable, and those over 14 were treated as adults.

5. When may a person use nondeadly force in self-defense?

   When the person reasonably believes it necessary to defend against the imminent use of unlawful force. The force used must be proportional to the threat.

6. What must a defendant show under the M'Naghten test for insanity?

   That, because of a mental disease, the defendant did not know the nature and quality of the act or that it was wrong. M'Naghten is a purely cognitive test.

7. When is voluntary intoxication a defense at common law?

   When it negates the specific intent required for the crime. Voluntary intoxication is no defense to general-intent or recklessness crimes.

8. How does an initial aggressor regain the right of self-defense?

   By withdrawing and communicating the withdrawal, or when the victim escalates to deadly force against a nondeadly attack. Otherwise, the initial aggressor has no right of self-defense.

9. What must a defendant show under the Model Penal Code test for insanity?

   That a mental disease or defect left the defendant without substantial capacity to appreciate wrongfulness or conform to law. The test has both a cognitive and a volitional prong.

10. When is a mistake of law a defense?

    When the defendant reasonably relied on an official statement of law later found wrong, or the mistake negates a mental state. Ordinarily, ignorance of the law is no excuse.

11. When may a person use deadly force in self-defense?

    When the person reasonably believes it necessary to prevent imminent death or serious bodily harm. Deadly force may not be used against a merely nondeadly threat.

12. What is the majority rule on retreat before using deadly force in self-defense?

    There is no duty to retreat. Minority jurisdictions require retreat if it can be done in complete safety, except in one's home.

13. What are the requirements of the necessity defense?

    A reasonable belief that the conduct was necessary to avoid a greater harm, with no legal alternative. The defense is unavailable if the defendant created the emergency or the legislature excluded it.

14. What are the elements of the duress defense?

    A threat of imminent death or serious bodily harm that caused a reasonable fear and left no reasonable escape. In most jurisdictions, duress is not a defense to murder.

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