Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/mpc/p209.asc

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capacity either to appreciate its criminality [wrongfulness] or
to conform his conduct to the requirements of law.

    (5) Definitions.  In this Section unless a different meaning
plainly is required:

    (a) "intoxication" means a disturbance of mental or physical
capacities resulting from the introduction of substances into the
body;

    (b) "self-induced intoxication" means intoxication caused by
substances which the actor knowingly introduces into his body,
the tendency of which to cause intoxication he knows or ought to
know, unless he introduces them pursuant to medical advice or
under such circumstances as would afford a defense to a charge of
crime.

    (c) "pathological intoxication" means intoxication grossly
excessive in degree, given the amount of the intoxicant, to which
the actor does not know he is susceptible.



2.09.  Duress

    (1) It is an affirmative defense that the actor engaged in
the conduct charged to constitute an offense because he was
coerced to do so by the use of, or a threat to us, unlawful force
against his person or the person of another, which a person of
reasonable firmness in his situation would have been unable to
resist.

    (2) The defense provided by this Section is unavailable if
the actor recklessly placed himself in a situation in which it
was probable that e would be subjected to duress.  The defense is
also unavailable if he was negligent in placing himself in such a
situation, whenever negligence suffices to establish culpability
for the offense charged.

    (3) It is not a defense that a woman acted on the command of
her husband, unless she acted under such coercion as would
establish a defense under this Section.  [The presumption that a
woman, acting in the presence of her husband, is coerced is
abolished.]

    (4) When the conduct of the actor would otherwise be
justifiable under Section 3.02, this Section does not preclude
such defense.



2.10.  Military Orders

    It is an affirmative defense that the actor, in engaging in
the conduct charged to constitute an offense, does no more than

execute an order of his superior in the armed services which he
does not know to be unlawful.



2.11. Consent

    (1) In General.  The consent of the victim to conduct
charged to constitute an offense or to the result thereof is a
defense if such consent negatives an element of the offense or
precludes the infliction of the harm or evil sought to be
prevented by the law defining the offense.

    (2) Consent to Bodily Harm.  When conduct is charged to
constitute an offense because it causes or threatens bodily harm
consent to such conduct or to the infliction of such harm is a
defense if:

    (a) the bodily harm consented to or threatened by the
conduct consented to is not serious; or

    (b) the conduct and the harm are reasonably foreseeable
hazards of joint participation in a lawful athletic contest or
competitive sport; or

    (c) the consent establishes a justification for the conduct
under Article 3 of the Code.

    (3) Ineffective Consent.  Unless otherwise provided by the
Code or by the law defining the offense, assent does not consent
if:

    (a) it is given by a person who is legally incompetent to
authorize the conduct charged to constitute the offense; or

    (b) it is given by a person who by reason of youth, mental
disease or defect or intoxication is manifestly unable or known
by the actor to be unable to make a reasonable judgment as to the
nature or harmfulness of the conduct charged to constitute the
offense; or

    (c) it is given by a person whose improvident consent is
sought to be prevented by the law defining the offense; or

    (d) it is induced by force, duress or deception of a kind
sought to be prevented by the law defining the offense.



2.12.  De Minimis Infractions

    The Court shall dismiss a prosecution if, having regard to
the nature of the conduct charged to constitute an offense and
the nature of the attendant circumstances, it finds that the
defendant's conduct:


    (1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was infringed
nor inconsistent with the purpose of the law defining the
offense; or

    (2) did not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense or did so
only to an extent too trivial to warrant the condemnation or
conviction; or

    (3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the legislature in
forbidding the offense.

    The Court shall not dismiss a prosecution under Subsection
(3) of this Section without filing a written statement of its
reasons.



2.13.  Entrapment

    (1) A public law enforcement official or a person acting in
cooperation with such an official perpetrates an entrapment if
for the purpose of obtaining evidence of the commission of an
offense, he induces or encourages another person to engage in
conduct constituting such offense by either:

    (a) making knowingly false representations designed to
induce the belief that such conduct is not prohibited; or

    (b) employing methods of persuasion or inducement which
create a substantial risk that such an offense will be committed
by persons other than those who are ready to commit it.

    (2) Except as provided in Subsection (3) of this Section, a
person prosecuted for an offense shall be acquitted if he proves
by preponderance of evidence that his conduct occurred in
response to an entrapment.  The issue of entrapment shall be
tried by the Court in the absence of the jury.

    (3) The defense afforded by this Section is unavailable when
causing or threatening bodily injury is an element of the offense
charged and the prosecution is based on conduct causing or
threatening such injury to a person other than the person
perpetrating the entrapment.



ARTICLE 3

General Principles of Justification

3.01.  Justification an Affirmative Defense; Civil Remedies
Unaffected



    (1) In any prosecution based on conduct which is justifiable
under this Article, justification is an affirmative defense.

    (2) The fact that conduct is justifiable under this Article
does not abolish or impair any remedy for such conduct which is
available in any civil action.



3.02.  Justification Generally:  Choice of Evils

    (1) Conduct which the actor believes to be necessary to
avoid a harm or evil to himself or to another is justifiable,
provided that:

    (a) the harm or evil sought to be avoided by such conduct is
greater than that sought to be prevented by the law defining the
offense charged; and

    (b) neither the Code nor other law defining the offense
provides exceptions or defenses dealing with the specific
situation involved; and

    (c) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear.

    (2) When the actor was reckless or negligent in bringing
about the situation requiring a choice of harms or evils or in
appraising the necessity for his conduct, the justification
afforded by this Section is unavailable in a prosecution for any
offense for which recklessness or negligence, as the case maybe,
suffices to establish culpability.



3.03.  Execution of Public Duty

    (1) Except as provided in Subsection (2) of this Section,
conduct is justifiable when it is required or authorized by:

    (a) the law defining the duties or functions of a public
officer or the assistance to be rendered to such officer in the
performance of his duties; or

    (b) the law governing the execution of legal process; or

    (c) the judgment or order of a competent court or tribunal;
or

    (d) the law governing the armed services or the lawful
conduct of war; or

    (e) any other provision of law imposing a public duty.

    (2) The other sections of this Article apply to:

    (a) the use of force upon or toward the person of another
for any of the purposes dealt with in such sections; and

    (b) the use of deadly force for any purpose, unless the use
of such force is otherwise expressly authorized by law or occurs
in the lawful conduct of war.

    (3) The justification afforded by Subsection (1) of this
Section applies:

    (a) when the actor believes his conduct to be required or
authorized by the judgment or direction of a competent court or
tribunal or in the lawful execution of legal process,
notwithstanding lack of jurisdiction of the court or defect in
the legal process; and

    (b) when the actor believes his conduct to be required or
authorized to assist a public officer in the performance of his
duties, notwithstanding that the officer exceeded his legal
authority.



3.04.  Use of Force in Self-Protection

    (1) Use of Force Justifiable for Protection of the Person.
Subject to the provisions of this Section and of Section 3.09,
the use of force upon or toward another person is justifiable
when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.

    (2)  Limitations on Justifying Necessity for Use of Force.

    (a) The use of force is not justifiable under this Section:

    (i) to resist an arrest which the actor knows is being made
by a peace officer, although the arrest is unlawful; or

    (ii) to resist force used by the occupier or possessor of
property or by another person on his behalf, where the actor
knows that the person using the force is doing so under a claim
of right to protect the property, except that this limitation
shall not apply if:

    (1) the actor is a public officer acting in the performance
of his duties or a persona lawfully assisting him therein or a
person making or assisting in a lawful arrest; or

    (2) the actor has been unlawfully dispossessed of the
property and is making a re-entry or recaption justified by
Section 3.06; or

    (3) the actor believes that such force is necessary to
protect himself against death or serious bodily harm.

    (b) The use of deadly force is not justifiable under this
Section unless the actor believes that such force is necessary to
protect himself against death, serious bodily harm, kidnapping or
sexual intercourse compelled by force or threat; nor is it
justifiable if:

    (i) the actor, with the purpose of causing death or serious
bodily harm, provoked the use of force against himself in the
same encounter; or

    (ii) the actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting a claim
of right thereto or by complying with a demand that he abstain
from any action which he has no duty to take, except that:

    (1) the actor is not obliged to retreat from his dwelling or
place of work, unless he was the initial aggressor or is assailed
in his place of work by another person whose place of work the
actor knows it to be; and

    (2) a public officer justified in using force in the
performance of his duties or a person justified in using force in
his assistance or a person justified in using force in making an
arrest or preventing an escape is not obliged to desist from
efforts to perform such duty, effect such arrest or prevent such
escape because of resistance or threatened resistance by or on
behalf of the person against whom such action is directed.

    (c) Except as required by paragraphs (a) and (b) of this
Subsection, a person employing protective force may estimate the
necessity thereof under the circumstances as he believes them to
be when the force is used, without retreating, surrendering
possession, doing any other act which he has no legal duty to do
or abstaining from any lawful action.

    (3) Use of Confinement as Protective Force.  The
justification afforded by this Section extends to the use of
confinement as protective force only if the actor takes all
reasonable measures to terminate the confinement as soon as he
knows that he safely can, unless the person confined has been
arrested on a charge of crime.



3.05.  Use of Force for the Protection of Other Persons

    (1) Subject to the provisions of this Section and of Section
3.09, the use of force upon or toward the person of another is
justifiable to protect a third person when:

    (a) the actor would be justified under Section 3.04 in using
such force to protect himself against the injure he believes to
be threatened to the person whom he seeks to protect; and

    (b) under the circumstances as the actor believes them to
be, the person whom he seeks to protect would be justified in
using such protective force; and

    (c) the actor believes that his intervention is necessary
for the protection of such other person.

    (2) Notwithstanding Subsection (1) of this Section:

    (a) when the actor would be obliged under Section 3.04 to
retreat, to surrender the possession of a thing or to comply with
a demand before using force in self-protection, he is not obliged
to do so before using force for the protection of another person,
unless he knows that he can thereby secure the complete safety of
such other person; and

    (b) when the person whom the actor seeks to protect would be
obliged under Section 3.04 to retreat, to surrender the
possession of a thing or to comply with a demand if he knew that
he could obtain complete safety by so doing, the actor is obliged
to try to cause him to do so before using force in his protection
if the actor knows that he can obtain complete safety in that
way; and

    (c) neither the actor nor the person whom he seeks to
protect is obliged to retreat when the other's dwelling or place
of work to any greater extent than in his own.



3.06  Use of Force for the Protection of Property

    (1) Use of Force Justifiable for Protection of Property.
Subject to the provisions of this Section and of Section 3.09,
the use of force upon or toward the person of another is
justifiable when the actor believes that such force is
immediately necessary:

    (a) to prevent or terminate an unlawful entry or other
trespass upon land or a trespass against or the unlawful carrying
away of tangible, movable property, provided that such land or
movable property is, or is believed by the actor to be, in his
possession or in the possession of another person for whose
protection he acts; or

    (b) to effect an entry or re-entry upon land or to retake
tangible movable property, provided that the actor believes that
he or the person by whose authority he acts or a person from whom
he or such other person derives title was unlawfully dispossessed
of such land or movable property and is entitled to possession,
and provided, further, that:

    (i) the force is used immediately or on fresh pursuit after
such dispossession; or

    (ii) the actor believes that the person against whom he uses
force has no claim of right to the possession of the property
and, in the case of land, the circumstances, as the actor
believes them to be, are of such urgency that it would be an
exceptional hardship to postpone the entry or re-entry until a
court order is obtained.

    (2) Meaning of Possession.  For the purposes of Subsection
(1) of this Section:

    (a) a person who has parted with the custody of property to
another who refuses to restore it to him is no longer in
possession, unless the property is movable and was and still is
located on land in his possession;

    (b) a person who has been dispossessed of land does not
regain possession thereof merely by setting foot thereon;

    (c) a person who has a license to use or occupy real
property is deemed to be in possession thereof except against the
licensor acting under claim of right.

    (3) Limitations on Justifiable Use of Force.

    (a) Request to Desist.  The use of force is justifiable
under this Section only if the actor first requests the person
against whom such forces is used to desist from his interference
with the property, unless the actor believes that:

    (i) such request would be useless; or

    (ii) it would be dangerous to himself or another person to
make the request; or

    (iii) substantial harm will be done to the physical
condition of the property which is sought to be protected before
the request can effectively be made.

    (b) Exclusion of Trespasser.  The use of force to prevent or
terminate a trespass is not justifiable under this Section if the
actor knows that the exclusion of the trespasser will expose him
to substantial danger of serious bodily harm.

    (c) Resistance of Lawful Re-entry or Recaption.  The use of
force to prevent an entry or re-entry upon land or the recaption
of movable property is not justifiable under this Section,
although the actor believes that such re-entry or recaption is
unlawful, if:


    (i) the re-entry or recaption is made by or on behalf of a
person who was actually dispossessed of the property; and

    (ii) it is otherwise justifiable under paragraph (1)(b) of
this Section.

    (d) Use of Deadly Force.  The use of deadly force is not
justifiable under this Section unless the actor believes that:

    (i) the person against whom the force is used is attempting
to dispossess him of his dwelling otherwise than under a claim of
right to its possession; or

    (ii) the person against whom the force is used is attempting
to commit or consummate arson, burglary, robbery or other
felonious theft or property destruction and either:

    (1) has employed or threatened deadly force against or in
the presence of the actor; or

    (2) the use of force other than deadly force to prevent the
commission or the consummation of the crime would expose the
actor or another in his presence to substantial danger of serious
bodily harm.

    (4) Use of Confinement as Protective Force.  The
justification afforded by this Section extends to the use of
confinement as protective force only if the actor takes all
reasonable measures to terminate the confinement as soon as he
knows that he can do so with safety to the property, unless the
person confined has been arrested on a charge of crime.

    (5) Use of Device to Protect Property.  The justification
afforded by this Section extends to the use of a device for the
purpose of protecting property only if:

    (a) the device is not designed to cause or known to create a
substantial risk of causing death or serious bodily harm; and

    (b) the use of the particular device to protect the property
from entry or trespass is reasonable under the circumstances, as
the actor believes them to be; and

    (c) the device is one customarily used for such a purpose or
reasonable care is taken to make known to probable intruders the
fact that it is used.

    (6) Use of Force to Pass Wrongful Obstructor.  The use of
force to pass a person whom the actor believes to be purposely or
knowingly and unjustifiably obstructing the actor from going to a
place to which he may be unlawfully go is justifiable, provided
that:

    (a) the actor believes that the person against whom he uses
force has no claim of right to obstruct the actor; and

    (b) the actor is not being obstructed from entry or movement
on land which he knows to be in the possession or custody of the
person obstructing him, or in the possession or custody of
another person by whose authority the obstructor acts, unless the
circumstances, as the actor believes them to be, are of such
urgency that it would not be reasonable to postpone the entry or
movement on such land until a court order is obtained; and

    (c) the force used is not greater than would be justifiable
if the person obstructing the actor were using force against him
to prevent his passage.



3.07.  Use of Force in Law Enforcement

    (1) Use of Force Justifiable to Effect an Arrest.  Subject
to the provisions of this Section and of Section 3.09, the use of
force upon or toward the person of another is justifiable when
the actor is making or assisting in making an arrest and the
actor believes that such force is immediately necessary to effect
a lawful arrest.

    (2) Limitations on the Use of Force.

    (a) The use of force is not justifiable under this Section
unless:

    (i) the actor makes known the purpose of the arrest or
believes that it is otherwise known by or cannot reasonably be
made known to the person to be arrested; and

    (ii) when the arrest is made under a warrant, the warrant is
valid or believed by the actor to be valid.

    (b) The use of deadly force is not justifiable under this
Section unless:

    (i) the arrest is for a felony; and

    (ii) the person effecting the arrest is authorized to act as
a peace officer or is assisting a person whom he believes to be
authorized to act as a peace officer; and

    (iii) the actor believes that the force employed creates no
substantial risk of injury to innocent persons; and

    (iv) the actor believes that:

    (1) the crime for which the arrest is made involved conduct
including the use or threatened use of deadly force; or

    (2) there is a substantial risk that the person to be
arrested will cause death or serious bodily harm if his
apprehension is delayed.

    (3) Use of Force to Prevent Escape from Custody.  The use of
force to prevent the escape of an arrested person from the
custody is justifiable when the force could justifiably have been
employed to effect the arrest under which the person is in
custody, except that a guard or other person authorized to act as
a peace officer is justified in using any force, including deadly
force, which he believes to be immediately necessary to prevent
the escape of a person from a jail, prison, or other institution
for the detention of persons charged with or convicted of a
crime.

    (4) Use of Force by Private Person Assisting an Unlawful
Arrest.

    (a) A private person who is summoned by a peace officer to
assist in effecting an unlawful arrest, is justified in using any
force which he would be justified in using if the arrest were
lawful, provided that he does not believe the arrest is unlawful.

    (b) A private person who assists another private person in
effecting an unlawful arrest, or who, not being summoned, assists
a peace officer in effecting an unlawful arrest, is justified in
using any force which he would be justified in using if the
arrest were lawful, provided that (i) he believes the arrest is
lawful, and (ii) the arrest would be lawful if the facts were as
he believes them to be.

    (5) Use of Force to Prevent Suicide or the Commission of a
Crime.

    (a) The use of force upon or toward the person of another is
justifiable when the actor believes that such force is
immediately necessary to prevent such other person from
committing suicide, inflicting serious bodily harm upon himself,
committing or consummating the commission of a crime involving or
threatening bodily harm, damage to or loss of property or a
breach of the peace, except that:

    (i) any limitations imposed by the other provisions of this
Article on the justifiable use of force in self-protection for
the protection of others, the protection of property, the
effectuation of an arrest or the prevention of an escape from
custody shall apply notwithstanding the criminality of the
conduct against which such force is used; and

    (ii) the use of deadly force is not in any event justifiable
under this Subsection unless:

    (1) the actor believes that there is a substantial risk that
the person whom he seeks to prevent from committing a crime will
cause death or serious bodily harm to another unless the
commission or the consummation of the crime is prevented and that
the use of such force presents no substantial risk of injury to
innocent persons; or

    (2) the actor believes that the use of such force is
necessary to suppress a riot or mutiny after the rioters or
mutineers have been ordered to disperse and warned, in any
particular manner that the law may require, that such force will
be used if they do not obey.

    (b) The justification afforded by this Subsection extends
tot he use of confinement as preventive force only if the actor
takes all reasonable measures to terminate the confinement as
soon as he knows that he safely can, unless the person confined
has been arrested on a charge of crime.



3.08.  Use of Force by Persons with Special Responsibility for
Care, Discipline or Safety of Others

    The use of force upon or toward the person of another is
justifiable if:

    (1) the actor is the parent or guardian or other person
similarly responsible for the general care and supervision of a
minor or a person acting at the request of such parent, guardian
or other responsible person and:

    (a) the force is used for the purpose of safeguarding or
promoting the welfare of the minor, including the promotion or
punishment of his misconduct; and

    (b) the force used is not designed to cause or known to
create a substantial risk of causing death, serious bodily harm,
disfigurement, extreme pain or mental distress or gross
degradation; or

    (2) the actor is a teacher or a person otherwise entrusted
with the care or supervision for a special purpose of a minor
and:

    (a) the actor believes that the force used is necessary to
further such special purpose, including the maintenance of
reasonable discipline in a school, class or other group, and that
the use of such force is consistent with the welfare of the
minor; and

    (b) the degree of force, if it had been used by the parent
or guardian of the minor, would not be unjustifiable under
Subsection (1)(b) of this Section; or

    (3) the actor is the guardian or other person similarly
responsible for the general care and supervision of an
incompetent person; and


    (a) the force is used for the purpose of safeguarding or
promoting the welfare of the incompetent person, including the
prevention of his misconduct, or, when such incompetent person is
in a hospital or other institution for his care and custody, for
the maintenance of reasonable discipline in such institution; and

    (b) the force used is not designed to cause or known to
create a substantial risk of causing death, serious bodily harm,
disfigurement, extreme or unnecessary pain, mental distress, or
humiliation; or

    (4) the actor is a doctor or other therapist or a person
assisting him at his direction, and:

    (a) the force is used for the purpose of administering a
recognized form of treatment which the actor believes to be
adapted to promoting the physical or mental health of the
patient; and

    (b) the treatment is administered with the consent of the
patient or, if the patient is a minor or an incompetent person,
with the consent of his parent or guardian or other person
legally competent to consent in his behalf, or the treatment is
administered in an emergency when the actor believes that no one
competent to consent can be consulted and that a reasonable
person, wishing to safeguard the welfare of the patient, would
consent; or

    (5) the actor is a warden or other authorized official of a
correctional institution, and:

    (a) he believes that the force used is necessary for the
purpose of enforcing the lawful rules or procedures of the
institution, unless his belief in the lawfulness of the rule or
procedure sought to be enforced is erroneous and his error is due
to ignorance or mistake as to the provisions of the Code, any
other provision of the criminal law or the law governing the
administration of the institution; and

    (b) the nature or degree of force used is not forbidden by
Article 303 or 304 of the Code; and

    (c) if deadly force is used, its use is otherwise
justifiable under this Article; or

    (6) the actor is a person responsible for the safety of a
vessel or an aircraft or a person acting at his direction, and

    (a) he believes that the force used is necessary to prevent
interference with the operation of the vessel or aircraft or
obstruction of the execution of a lawful order, unless his belief
in the lawfulness of the order is erroneous and his error is due
to ignorance or mistake as to the law defining his authority; and


    (b) if deadly force is used, its use is otherwise
justifiable under this Article; or

    (7) the actor is a person who is authorized or required by
law to maintain order or decorum in a vehicle, train or other
carrier or in a place where others are assembled, and:

    (a) he believes that the force used is necessary for such
purpose; and

    (b) the force used is not designed to cause or known to
create a substantial risk of causing death, bodily harm, or
extreme mental distress.



3.09.  Mistake of Law as to Unlawfulness of Force or Legality of
Arrest; Reckless or Negligent Use of Otherwise Justifiable Force;
Reckless or Negligent Injury or Risk of Injury to Innocent
Persons

    (1) The justification afforded by Sections 3.04 to 3.07,
inclusive, is unavailable when:

    (a) the actor's belief in the unlawfulness of the force or
conduct against which he employs protective force or his belief
in the lawfulness of an arrest which he endeavors to effect by
force is erroneous; and

    (b) his error is due to ignorance or mistake as to the
provisions of the Code, any other provision of the criminal law
or the law governing the legality of an arrest or search.

    (2) When the actor believes that the use of force upon or
toward the person of another is necessary for any of the purposes
for which such belief would establish a justification under
Sections 3.03 to 3.08 but the actor is reckless or negligent in
having such belief or in acquiring or failing to acquire any
knowledge or belief which is material to the justifiable of his
use of force, the justification afforded by those Sections is
unavailable in a prosecution for an offense for which
recklessness or negligence, as the case may be, suffices to
establish culpability.

    (3) When the actor is justified under Sections 3.03 to 3.08
in using force upon or toward the person of another but he
recklessly or negligently injures or creates a risk of injury to
innocent persons, the justification afforded by those Sections is
unavailable in a prosecution for such recklessness or negligence
towards innocent persons.



3.10.  Justification in Property Crimes

    Conduct involving the appropriation, seizure or destruction
of, damage to, intrusion on or interference with property is
justifiable under circumstances which would establish a defense
of privilege in a civil action based thereon, unless:

    (1) the Code or the law defining the offense deals with the
specific situation involved; or

    (2) a legislative purpose to exclude the justification
claimed otherwise plainly appears.



3.11.  Definitions

In this Article, unless a different meaning plainly is required:

    (1) "unlawful force" means force, including confinement,
which is employed without the consent of the person against whom
it is directed and the employment of which constitutes an offense
or actionable tort or would constitute such offense or tort
except for a defense (such as the absence of intent, negligence,
or mental capacity; duress; youth; or diplomatic status) not
amounting to a privilege to use the force.  Assent constitutes
consent, within the meaning of this Section, whether or not it
otherwise is legally effective, except assent tot he infliction
of death or serious bodily harm.

    (2) "deadly force" means force which the actor uses with the
purpose of causing or which he knows to create a substantial risk
of causing death or serious bodily harm.  Purposely firing a
firearm in the direction of another person or at a vehicle in
which another person is believed to be constitutes deadly force.
A threat to cause death or serious bodily harm, by the production
of a weapon or otherwise, so long as the actor's purpose is
limited to creating an apprehension that he will use deadly force
if necessary, does not constitute deadly force;

    (3) "dwelling" means any building or structure, though
movable or temporary, or a portion thereof, which is for the time
being the actor's home or place of lodging.



ARTICLE 4

RESPONSIBILITY

4.01.  Mental Disease or Defect Excluding Responsibility

    (1) A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
he lacks substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law.

    (2) As used in this Article, the terms "mental disease or
defect" do not include an abnormality manifested only by repeated
criminal or otherwise anti-social conduct.



4.02.  Evidence of Mental Disease or Defect Admissible When
Relevant to Element of the Offense; [Mental Disease or Defect
Impairing Capacity as Ground for Mitigation of Punishment in
Capital Cases]

    (1) Evidence that the defendant suffered from a mental
disease or defect is admissible whenever it is relevant to prove
that the defendant did or did not have a state of mind which is
an element of the offense.

    (2) Whenever the jury or the Court is authorized to
determine or to recommend whether or not the defendant shall be
sentenced to death or imprisonment upon conviction, evidence that
the capacity of the defendant to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease or
defect is admissible in favor of sentence of imprisonment.]



4.03.  Mental Disease or Defect Excluding Responsibility Is
Affirmative Defense; Requirement of Notice; Form of Verdict and
Judgment When Finding of Irresponsibility Is Made

    (1) Mental disease or defect excluding responsibility is an
affirmative defense.

    (2) Evidence of mental disease or defect excluding
responsibility is not admissible unless the defendant, at the
time of entering his plea of not guilty or within ten days
thereafter or at such later time as the Court may for good cause
permit, files a written notice of his purpose to rely on such
defense.

    (3) When the defendant is acquitted on the ground of mental
disease or defect excluding responsibility, the verdict and the
judgment shall so state.



4.04.  Mental Disease or Defect Excluding Fitness to Proceed

    No person who as a result of mental disease or defect lacks
capacity to understand the proceedings against him or to assist
in his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as such incapacity endures.




4.05.  Psychiatric Examination of Defendant with Respect to
Mental Disease or Defect

    (1) Whenever the defendant has filed a notice of intention
to rely on the defense of mental disease or defect excluding
responsibility, or there is reason to doubt his fitness to
proceed, or reason to believe that mental disease or defect of
the defendant will otherwise become an issue in the cause, the
Court shall appoint at least one qualified psychiatrist or shall
request the


Superintendent of the                    Hospital to designate at
least one qualified psychiatrist, which designation may be or
include himself, to examine and report upon the mental condition
of the defendant.  The Court may order the defendant to be
committed to a hospital or other suitable facility for the
purpose of the examination for a period of not exceeding sixty
days or such longer period as the Court determines to be
necessary for the purpose and may direct that a qualified
psychiatrist retained by the defendant be permitted to witness
and participate in the examination.

    (2) In such examination any method may be employed which is
accepted by the medical profession for the examination of those
alleged to be suffering from mental disease or defect.

    (3) The report of the examination shall include the
following:  (a) a description of the nature of the examination;
(b) a diagnosis of the mental condition of the defendant; (c) if
the defendant suffers from a mental disease or defect, an opinion
as to his capacity to understand the proceedings against him and
to assist in his own defense; (d) when a notice of intention to
rely on the defense of irresponsibility has been filed, an
opinion as to the extent, if any, to which the capacity of the
defendant to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements of law was
impaired at the time of the criminal conduct charged; and (e)
when directed by the Court, an opinion as to the capacity of the
defendant to have a particular state of mind which is an element
of the offense charged.

    If the examination can not be conducted by reason of the
unwillingness of the defendant to participate therein, the report
shall so state and shall include, if possible, an opinion as to
whether such unwillingness of the defendant was the result of
mental disease or defect.

    The report of the examination shall be filed [in triplicate]
with the clerk of the Court, who shall cause copies to be
delivered to the district attorney and to counsel for the
defendant.



4.06.  Determination of Fitness to Proceed; Effect of Finding of
Unfitness; Proceedings if Fitness is Regained [; Post-Commitment
Hearing]

    (1) When the defendant's fitness to proceed is drawn in
question, the issue shall be determined by the Court.  If neither
the prosecuting attorney nor counsel or the defendant contests
the finding of the report filed pursuant to Section 4.05, the
Court may make the determination on the basis of such report.  If
the finding is contested, the Court shall hold a hearing on the
issue.  If the report is received in evidence upon such hearing,
the party who contests the finding thereof shall have the right
to summon and to cross-examine the psychiatrists who joined in
the report and to offer evidence upon the issue.

    (2) If the Court determines that the defendant lacks fitness
to proceed, the proceeding against him shall be suspended, except
as provided in Subsection (3) [Subsections (3) and (4)] of this
Section, and the Court shall commit him to the custody of the
commissioner of Mental Hygiene [Public Health or Correction] to
be placed in an appropriate institution of the Department of
Mental Hygiene [Public Health or Correction] for so long as such
unfitness shall endure.  When the Court, on its own motion or
upon the application of the Commissioner of Mental Hygiene
[Public Health or Correction] or the prosecuting attorney,
determines, after a hearing if a hearing is requested, that the
defendant has regained fitness to proceed, the proceeding shall
be resumed.  If, however, the Court is of the view that so much
time has elapsed since the commitment of the defendant that it
would be unjust to resume the criminal proceeding, the Court may
dismiss the charge and may order the defendant to be discharged
or, subject to the law governing the civil commitment of persons
suffering from mental disease or defect, order the defendant to
be committed to an appropriate institution of the Department of
Mental Hygiene [Public Health].

    (3) The fact that the defendant is unfit to proceed does not
preclude any legal objection to the prosecution which is
susceptible of fair determination prior to trial and without the
personal participation of the defendant.

    [Alternative: (3) At any time within ninety days after
commitment as provided in Subsection (2) of this Section, or at
any later time with permission of the Court granted for good
cause, the defendant or his counsel or the Commissioner of Mental
Hygiene [Public Health or Correction] may apply for a special
post-commitment hearing.  If the application is made by or on
behalf of a defendant not represented by counsel, he shall be
afforded a reasonable opportunity to obtain counsel, and if he
lacks funds to do so, counsel shall be assigned by the Court.
The application shall be granted only if the counsel for the
defendant satisfies the Court by affidavit or otherwise that as
an attorney he has reasonable grounds for a good faith belief
that his client has, on the facts and the law, a defense to the
charge other than mental disease or defect excluding
responsibility.]

    [(4) If the motion for a special post-commitment hearing is
granted, the hearing shall be by the Court without a jury.  No
evidence shall be offered at the hearing by either party on the
issue of mental disease or defect as a defense to, or in
mitigation of, the crime charged.  After hearing, the Court may
in an appropriate case quash the indictment or other charge, or
find it to be defective or insufficient, or determine that it is
not proved beyond a reasonable doubt by the evidence, or
otherwise terminate the proceedings on the evidence or the law.
In any such case, unless all defects in the proceedings are
promptly cured, the Court shall terminate the commitment ordered
under Subsection (2) of this Section and order the defendant to
be discharged or, subject to the law governing the civil
commitment of persons suffering from mental disease or defect,
order the defendant to be committed to an appropriate institution
of the Department of Mental Hygiene [Public Health].]