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Author Topic: crim law question - may be dumb - affirm defenses  (Read 924 times)

1Lchica

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crim law question - may be dumb - affirm defenses
« on: December 16, 2007, 08:08:51 PM »
OK, you have affirmative defenses, and you have element negators (both of which D can bring up) -- is this it? Are there any other types of defenses D can bring up? (Or does everything pretty much fall into one or the other category? some fall in both?)

thorc954

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Re: crim law question - may be dumb - affirm defenses
« Reply #1 on: December 16, 2007, 08:12:36 PM »
OK, you have affirmative defenses, and you have element negators (both of which D can bring up) -- is this it? Are there any other types of defenses D can bring up? (Or does everything pretty much fall into one or the other category? some fall in both?)

I cant, off the top of my head, think of anything that isnt an affirmative defense nor an element negator. I may be wrong.  I think things can be an affirmative defense and an element negator.  For example, claiming consent as a defense to a rape charge would probably fall under an affirmative defense and would negate an element.  Then again, my crim prof was terrible, and i am old and have no clue about the law anymore, so i am not sure.

jacy85

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Re: crim law question - may be dumb - affirm defenses
« Reply #2 on: December 16, 2007, 09:27:09 PM »
I'm not quite sure what you mean by an "element negator"?

wardwilliams

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Re: crim law question - may be dumb - affirm defenses
« Reply #3 on: December 17, 2007, 12:31:28 AM »
For instance, insanity (or mistake, or anything else) could be a defense or it could negate the element of mens rea (if you are insane you have no mens at all). If you say it is a defense, the burden is on def. to prove it. If it negates the element of mens rea, the burden is on the pros. to disprove it.


I'm not quite sure what you mean by an "element negator"?

Mina

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Re: crim law question - may be dumb - affirm defenses
« Reply #4 on: December 17, 2007, 01:34:16 AM »
I think their is a mix up, since their are three categories, (1) Alibi & Mistake of law/fact, intoxication (in NY) etc. are actually not defenses at all, they simply negate the mens rea with an external fact/law (by creating a reasonable doubt), that usu. means defense attorney has to produce evidence & persuade but the prosecutor need NOT disprove beyond a reasonable doubt (BARD). (2) True defenses NEED introduce an internal element that negates a CRIME element (e.g. self-defense, justification, defense of 3rd p. etc.), prosecutor needs to disprove these BARD, only some evidence required--just production by defense counsel. (3) Affirm. Def. require produce & persuade, (e.g. insanity, most heat of passion, diminished responsibility, duress, EXECUSES,entrapment) prosecutor usu. needs to disprove these BARD, though some states differ & each defense differs. Quick short hand: (1) element negators poke holes in State's case, (2) defenses usu. assert elements of crime present, but conduct justified--no "wrong" crime was committed, & (3) affirm def. assert this person execused cuz of some special fact/law. Hope this helps!