Class 7: Defences. Flashcards
What is an affirmative defence?
A defence you can raise even if the prosecution has evidence BRD
Define a justification and excuse.
Whats the difference?
A justification relates to conduct that otherwise would be criminal but is not because its not regarded as being worth of moral blameworthiness. We justify the conduct because under the circumstances it is not morally blameworthy but might be socially desirable. This focuses on the action; what did the actor do under the circumstances that we can justify the action
Excuse relates to conduct that would otherwise be criminal but is not because the actgor lacks morally blameworthiness. Because of some conditions or circumstance even though the act was morally blameworthy and not socially desirable. Action is still bad, but there is an excuse.
US Self Defence
1) Is it a justification or excuse?
2) Under common law (all jurisdictions use this) what does the law say?
3) Can you use deadly force if they are not using deadly force?
4) What is the four part test for US self defence?
5) What is the three part test for CAN Self defence?
6) What is the difference for MPC self defence?
1) Justification
2) A non-aggressor will be justified and not held criminally responsible if they believed force was necessary to protect themselves.
3) No. Deadly force can only be used if you are being threatened with deadly force.
4) US test
1) Imminent Threat
2) Necessity
3) Belief of threat is imminent and neccessity
4) Proportionality
5) CAN test
1) Threat of force
2) Defensive purpose
3) Reasonable (proportionality)
6) MPC uses language that allows slow-developing threats. instead of the word “imminence” it uses “immediately necessary”
What is the difference between common law self defence and MPC self defence?
MPC uses “immediately necessary” while common law uses “imminence”
Imminence asks about the temporal connection, asking if they are close in time
Immediately necessary asks whether it was necessary to use defence force at that moment to stop the threat. It is a lower threshold and is used when there is a slow developing threat.
Norman Case
Facts: Judy Norma was subject to abuse and degradation by her husband. Very extensive abuse. One evening, husband JT was particularly bad. Judy got a gun and fired three shots into JT while he was sleeping. Judy claims self-defense due to the repeated abuse she suffered.
Issue:
1) What is the four part test for US self defence?
2) Was the threat imminent for self-defense?
Holding:
Imminent deadly force is required to use deadly force to protect herself.
Court held imminent means about to suffer harm. There was no evidence here she was about to suffer any harm. She had time and opportunity to use other means to protect herself. Thus, she cannot claim it was an imminent harm and there was no necessity.
Just saying “I’m constantly under this threat, and I never know when he’s going to abuse me. And she genuinely believes it’s a matter of time before she dies” but the law again, requires imminence and there was no imminent
1) Imminent Threat
2) Necessity
3) Belief of threat is imminent and neccessity
4) Proportionality
Can you claim self defence if you are the initial aggressor?
At common law, what if the defender could safely retreat?
What is the general exception to the retreat idea?
in modern times, is retreat necessary?
No as you cannot claim necessity to use force if you started everything.
At common law, if you could retreat, you were not allowed to use force in self-defence. There is a duty to retreat.
Exception is the castle doctrine, one need not retreat when in ones home.
Now this is largely not needed.
Peterson Case
Facts: P had a wrecked car behind his house and found K trying to steal his car. P gets a gun and says if you move I’ll kill you. K begins to walk towards P after grabbing a wrench. P warns K but then kills him. P claims self defence.
Issue: Was this a defence killing?
What is the US test?
Try and apply before looking at answer.
Holding:
Self Defence is
1) Imminent threat
2) Necessity
3) Belief of imminent threat and necessity.
4) Proportionale
No. he precepts the use of force and also had the ability to retreat to a safe area.
He also tried to argue the castle doctrine but court said no as it only applies when you are not the initial aggressor.
Riddle Case
Facts: R shot another guy who entered his backyard and dropped rifle in the river. The victim was unarmed, not threatening, but R claims he was threatening. R claims self defence.
Issue:
1) Was there a duty to retreat in common law?
2) What is the castle doctrine?
3) Does the castle doctrine apply in the backyard?
1) in common law, there was a duty to retreat.
2) Exception to the general rule you must retreat. if you are in your home, you do not need to retreat.
3) No retreat is required when you are facing sudden violence or deadly weapon, retreat is required when mutual combat, and no retreat is required in the home (castle doctrine)
But the castle doctrine does not apply to the backyard.
What is the idea behind “stand your ground” legislation?
Hypo
A is the aggressor. B is the victim.
A smacks B.
B shoots A in response.
1) Can B claim self defence?
2) If A responds by killing B after he is shot, can he claim self defence?
This is simply a codification of the modern trend towards abolishing retreat. It allows a person to use defensive force outside of the home anywhere they have a legal right to be if they face imminent threat.
1) No his response was not proportionate.
2) YES! Even though A was the initial aggressor, B responded with disproportionate force which now makes B the aggressor instead. So A killing B is actual self defence.
For the “reasonable belief “ needed for self defence, what fault standard is used?
Modified Objective
People v Gets
Facts: B know as the subway vigilante. Tons of crime In new York at the time. B is approached by four men, and they said give me 5 dollars. B was holding a weapon and fires four shots and hits all four guys. B claims self defence.
Issue: What mental element is needed for reasonable belief of the threat?
Holding:
B claims he subjectively believed he was going to get killed by these four guys.
Crown claims self defense is both subjective and objective, not just subjectively reasonable to B
Court says it is not a subjective belief alone it is a hybrid standard. It is objective (reasonable standard) in the defendants situation so we can still account for the defendants situation
So it is a modified objective test .
B was acquitted
What is imperfect self defence?
If it works what does it lead to?
This exists when the defender subjectively but mistakenly/unreasonably believed that force was necessary but it was not reasonable to entrain such a belief.
This results in a lesser charge of manslaughter rather then murder.
