I. LACK OF CAPACITY
A. [§1] Infants.
B. [§2] Idiots.
B-1. [§2A] (New) Mental Retardation.
C. Corporations and Other Associations.
(1) [§3] General Principles.
(2) [§4] Corporations.
(3) [§5] Partnership as Entity.
(4) [§6] Individual Partners.
D. Insane Persons.
1. Insanity as a Defense.
(a) [§7] General Rule.
(b) [§8] Temporary Insanity.
(c) [§9] Insane Delusion.
2. [§10] Other Effects of Mental Aberrations.
3. [§11] Distinctions Based on Time of Insanity.
4. Test of Insanity.
(a) [§12] M'Naghten Test: Inability To Distinguish Right From Wrong.
(b) [§13] A.L.I. Test: Capacity To Appreciate Criminality of Conduct.
(c) [§14] Proposition 8 Test: M'Naghten Rule Restored.
5. [§15] Burden of Proof on Defendant.
6. [§16] Presumption of Insanity From Commitment.
7. Mental Aberrations Not Constituting Insanity.
(a) [§17] "Moral" or "Emotional" Insanity.
(b) [§18] "Irresistible Impulse."
(c) [§19] Delirium Tremens.
(d) [§20] Psychopaths and Sociopaths.
(e) [§21] Miscellaneous Disorders.
E. Diminished Capacity.
1. [§22] Former Law.
2. Abolition of Defense.
(a) [§23] Statutory Provisions.
(b) [§24] Statutes Constitutional.
(c) [§25] Limitations on Evidence.
F. Intoxicated Persons.
1. [§26] Voluntary Intoxication No Defense.
2. Crime Requiring Particular Mental State.
(a) [§27] No Constitutional Right to Intoxication as Defense.
(b) [§28]
(c) [§29] Scope of Defense.
(d) [§30] Evidence Must Be Sufficient To Raise Issue.
G. Unconscious Persons.
1. [§31] Defense of Unconsciousness.
2. [§32] Scope of Defense.
3. [§33] Presumption of Consciousness.
4. [§34] From Involuntary Intoxication.
5. [§35] From Voluntary Intoxication.
II. OTHER CONDITIONS AFFECTING INTENT
A. [§36] Ignorance of Law Not a Defense.
B. Mistake of Law.
1. [§37] In General.
2. [§38] Reliance on Advice, Statute, or Regulation.
C. Mistake of Fact.
1. [§39] Mistake Negativing Criminal Intent or Knowledge.
2. [§40] Mistake Resulting From Mental Illness.
3. [§41] Mistake of Fact Distinguished From Mistake of Law.
4. [§42] Where Criminal Intent Not Required.
5. Mistake as to Consent in Sex Case.
(a) [§43] Reasonable Mistake as Defense.
(b) [§44] Sufficiency of Evidence To Raise Defense.
6. Mistake as to Minor's Age.
(a) [§45] Unlawful Sexual Intercourse (Statutory Rape).
(b) [§46] Other Acts With Children.
7. Possession of Prohibited Property.
(a) [§47] Defendant Unaware of Possession.
(b) Defendant Unaware of Nature of Thing.
(1) [§48] Narcotics.
(2) [§49] Weapons.
(c) [§50] Defendant Unaware of Own Status.
(d) Temporary Possession for Disposal.
(1) [§51] Narcotics.
(2) [§52] Weapons.
D. Duress and Necessity.
1. [§53] In General.
2. [§54] Duress.
3. [§55] Necessity.
4. [§56] Elements of Defense.
5. [§57] Burden on Defendant.
6. [§58] Lack of Alternatives.
7. [§59] Fear of Bodily Harm.
8. [§60] Threat of Harm to Another.
9. [§61] Threat of Future Danger.
10. [§62] No "Imperfect Duress."
11. [§63] Necessity as Defense to Prison Escape.
III. SELF-DEFENSE
A. [§64] In General.
B. [§65] Defense of Third Person.
C. [§66] Conditions for Exercise.
D. [§67] Prisoners and Ex-Felons.
E. Apparent Necessity.
1. [§68] General Requirement.
2. [§69]
Exception: Simple
F. Determining Whether Belief Is Reasonable.
1. [§70] Reasonableness Based on Defendant's Perspective.
2. [§71] Threats by Third Person.
G. [§72] Reasonable Force.
H. [§73] Presumption That Force Used Within Residence Is Reasonable.
1. [§74] No Retreat Rule.
2. [§75] Exception: Aggressor or Other Wrongdoer.
J. [§76] Pursuit and Punishment.
K. [§77] Imperfect Self-Defense.
IV. DEFENSE OF PROPERTY
A. [§78] In General.
B. [§79] Exception: Use of Deadly Mechanical Devices.
V. PREVENTION OF CRIME
A. [§80] Dangerous Felony, Breach of Peace, and Public Offense.
B. [§81] Limitation on Force: Misdemeanor or Nondangerous Felony.
VI. APPREHENSION OF CRIMINAL
A. [§82] Killing by Officer.
B. [§83] Killing by Private Person.
C. [§84] Where Misdemeanor Committed.
D. Limitations on Use of Deadly Force.
1. [§85] Constitutional Limitations.
2. [§86] Limitations on Private Persons.
VII. CONSENT OF VICTIM
A. [§87] When Consent Is Not a Defense.
B. [§88] Crime Involving Lack of Consent.
C. [§89] Apparent Consent Improperly Obtained.
VIII. ENTRAPMENT
A. [§90] Nature of Defense.
B. [§91] Policy Basis.
C. Persons Who May Entrap.
1. [§92] Law Enforcement Officer.
2. [§93] Private Person Acting With Government Agent.
3. [§94] No Entrapment by Private Person Alone.
D. Test of Entrapment.
1. [§95] Former Law: Origin of Criminal Intent.
2. [§96] Current Law: Acceptable Conduct of Officer.
E. Claim and Trial of Defense.
1. [§97] Consistent With Denial of Act.
2. [§98] Burden of Proof.
3. [§99] Instructions.
F. [§100] Showing Sufficient for Defense.
G. [§101] Illustrations of Defense Rejected.
H. [§102] Related Defense: Outrageous Police Conduct.
I. [§102A] (New) Entrapment by Estoppel.
IX. FORMER JEOPARDY
A. [§103] Constitutional and Statutory Provisions.
B. [§104] Nature and Elements of Defense.
C. [§105] Federal and State Standards Both Applicable.
D. Proceedings Not Included.
1. Civil Proceedings.
(a) [§106] Criminal and Civil Proceedings Distinguished.
(b) [§107] Civil Proceedings Not Subject to Bar of Double Jeopardy.
(c) [§108] Civil Forfeiture.
2. [§109] Pretrial Criminal Proceedings.
3. [§110] Single Trial With Multiple Convictions or Acquittals.
4. [§111] Prison Disciplinary Proceedings.
5. [§112] Revocation of Probation or Parole.
6. [§113] Proceedings Relating to Sentence.
E. [§114] Competency of Court and Jury.
F. [§115] Validity of Accusatory Pleading.
G. Proceedings Constituting Jeopardy.
1. Jury Sworn or Trial Entered Upon.
(a) [§116] In General.
(b) [§117] Jury Sworn.
(c) [§118] Court Trial.
2. [§119] Discharge of Jury: In General.
3. Unwarranted Discharge Without Consent.
(a) [§120] General Rule: Retrial Prohibited.
(b) [§121] Express Objection by Defendant Not Required.
(c) [§122] Distinction: Discharge Without Objection Before Determination of Truth of Prior Conviction.
4. Discharge by Consent: Mistrial.
(a) [§123] Defendant's Motion or Express Consent.
(b) [§124] Defendant's Implied Consent.
(c) [§125] Distinction: Complaints About Incidents Not Necessarily Consent.
(d) [§126] Consent by Defendant or Counsel Alone.
(e) [§127] Motion Based on Prosecutorial Misconduct.
5. Mistrial on Court's Own Motion.
(a) [§128] Federal Rule.
(b) [§129]
6. Discharge by Necessity.
(a) [§130] Federal Rule.
(b) [§131]
(c) [§132] Illness, Other Incapacity, or Absence of Juror.
(d) Inability of Jurors To Agree (Hung Jury).
(1) [§133] General Principles.
(2) [§134] Determination.
(3) [§135] Multiple Defendants.
(4) [§136] Refusal To Receive Partial Verdict: Multiple Counts.
(5) [§137] Failure To Receive Partial Verdict: Where Only Greater Offense Is Charged.
(6) [§138] Unreported Jury Agreement on Some Offenses.
(e) [§139] Illness, Other Incapacity, or Absence of Defendant, Counsel, or Judge.
7. [§140] Acquittal.
8. [§141] Dismissal.
9. Conviction.
(a) [§142] After Trial.
(b) [§143] On Plea of Guilty.
(c) [§144] After Submission on Transcript.
(d) [§145] Modification of Verdict.
(e) [§146] New Trial.
(f) [§147] Postverdict Dismissal.
10. Retrial After Appeal and Reversal.
(a) [§148] Nature of Problem.
(b) Retrial on Greater Charge Prohibited.
(1) [§149] Federal Rule.
(2) [§150] Application of Rule to States.
(3) [§151] Conviction of Nonbarred Offense.
(4) [§152]
(c) Increased Punishment: Federal Rule.
(1) [§153] No Increased Punishment as Penalty.
(2) [§154] Distinction: Increased Sentence Imposed by Jury.
(3) [§155] Distinction: Increased Sentence Based on Subsequent Events.
(4) [§156] No Increased Punishment Where Prior Sentence Was Acquittal of Greater Punishment.
(d) Increased Punishment:
(1) [§157] No Increased Punishment.
(2) [§158] Distinction: Appeal From Unauthorized Sentence.
(3) [§159] Distinction: Appeal From Order Granting Probation.
(4) [§160] Distinction: Appeal by Prosecution.
(e) Reversal for Insufficiency of Evidence.
(1) [§161] Federal Decisions.
(2) [§162]
(f) [§163] Reversal Over Defendant's Objection.
11. [§164] Proceedings in Another Jurisdiction.
H. [§165] Post-Trial Proceedings Not Subject to Defense.
I. Same or Included Offense.
1. [§166] Nature of Problems.
2. Single Act but Distinct Unincluded Offenses.
(a) [§167] Single Act, Several Victims.
(b) [§168] Single Act, Several Statutes.
3. Included Offenses.
(a) [§169] Rule and Tests.
(b) [§170] Federal Approach.
(c) [§171] Greater Offense Included in Lesser.
(d) [§172] Exceptions.
(e) [§173] Homicide and Other Crimes.
(f) [§174] Burglary, Robbery, and Other Crimes.
(g) [§175] Assault and Other Crimes.
(h) [§176] Sex Offenses and Other Crimes.
(i) [§177] Other Offenses.
J. Defendant's Acts as Waiver of Defense.
1. [§178] New Trial or Reversal on Appeal.
2. [§179] Breach of Plea Bargain.
3. [§180] Judgment Vacated on Collateral Attack.
4. [§181] Dismissal Obtained on Technical Grounds or Made in Interests of Justice.
5. [§182] Deliberate Attempt To Create Jeopardy.
6. [§183] Deliberate Attempt To Create Violation of Prohibition Against Multiple Prosecution.
7. [§184] Fraud in Procuring Former Conviction.
K. Methods of Raising Defense.
1. [§185] Plea in Trial Court.
2. [§186] Prohibition.
3. [§187] Habeas Corpus.
X. RES JUDICATA (COLLATERAL ESTOPPEL)
A. [§188] The Doctrine in Criminal Cases.
B. [§189] Relationship to Double Jeopardy.
C. [§190] No Application to Retrial of Same Case.
D. [§191] Denial of Collateral Estoppel Does Not Affect Prior Judgment.
E. Elements and Conditions of Defense.
1. [§192] In General.
2. Same Parties.
(a) [§193] Different Plaintiffs: Prosecutions by Two Jurisdictions.
(b) [§194] Different Defendants: Defense Not Available.
(c) [§195] Exception: Where Vicarious Liability Involved.
(d) [§196] Prior Civil Proceeding.
(e) [§197] Prior Habeas Corpus Proceeding.
(f) [§198] Prior Probation Revocation Hearing.
(g) [§199] Prior Administrative Proceeding.
(h) [§200] Prior Dependency Proceeding.
(h-1) [§200A] (New) Prior Mentally Disordered Person Proceeding.
3. Final Determination on Merits.
(a) [§201] General Principle.
(b) [§202] Doctrine Inapplicable to Dismissal.
4. Issues Litigated and Determined.
(a) [§203] Nature of Problem.
(b) [§204] Doctrine Applied.
(c) [§205] Defense Rejected.
F. [§206] How Defense Is Raised.
G. Doctrine Invoked by Prosecution.
1. [§207] Issues of Guilt: Doctrine Applied.
2. [§208] Issues of Guilt: Doctrine Rejected.
3. [§209] Procedural Issues.
4. [§210] Prior Civil Proceeding.
5. [§210A] (New) Prior Sexually Violent Predator Proceeding.
H. Perjury in Criminal Trial.
1. [§211] In General: No Double Jeopardy.
2. [§212] No Collateral Estoppel.
3. [§213] Successive Perjury Prosecutions.
XI. STATUTE OF LIMITATIONS
A. [§214] In General.
B. Jurisdictional Nature of Statute.
1. [§215] Failure To Raise Defense Is Not Waiver.
2. [§216] Express or Implied Waiver.
3. [§217] Facially Sufficient Accusatory Pleading.
C. [§218] Burden of Proof.
D. [§219] Limitation Periods.
E. [§220] Determination of Applicable Limitation Period.
F. Running of Period.
1. [§221] In General.
2. When Period Begins To Run.
(a) [§222] Commission of Crime.
(b) [§223] Discovery of Crime: Statutory Provisions.
(c) [§224] What Constitutes Discovery.
(d) [§225] Who Qualifies As Discoverer.
3. Conspiracy.
(a) [§226] Last Overt Act.
(b) [§227] Completion of Primary Object.
4. [§228] Effect of Amendment to Accusatory Pleading.
G. Tolling of Statute.
1. [§229] In General.
2. [§230] Sex Offenses Against Minors.
XII. IMMUNITY FOR TESTIFYING
A. [§231] Statutory Immunity.
B. [§232] Nonstatutory Immunity.
XIII. NONUNIFORM ADMINISTRATION OF LAW
A. [§233] Laxity in Enforcement.
B. Intentional Discriminatory Enforcement.
1. [§234] Nature of Defense.
2. [§235] Methods of Raising Defense.
3. [§236] Burden of Proof on Defendant.
4. [§237] Showing Required To Obtain Discovery.
5. [§238] Showing Sufficient To Raise Defense.
6. [§239] Showing Insufficient To Raise Defense.
XIV. MISCELLANEOUS DEFENSES
A. [§240] Condonation or Compromise.
B. Misfortune or Accident.
1. [§241] In General.
2. [§242] Excusable Homicide.
C. Governmental Authority.
1. [§243] Homicide.
2. [§244] Trespass.
3. [§245] Narcotics Offenses.
4. [§246] Diplomatic Immunity.
5. [§247] Vehicle Offenses.
D. [§248] Physical Force on Student.
XV. UNTENABLE THEORIES OF DEFENSE
A. [§249] Good Motive.
B. [§250] Repentance, Recantation, or Abandonment.
C. [§251] Criminal Conduct of Victim.
D. [§252] Contributory Negligence of Victim.
E. [§253] Procuring Agent Defense.
F. [§254] Forum Non Conveniens.