Defenses Flashcards
Five General Categories of Defenses (Professor Robinson)
(1) Failure of Proof Defenses
(2) Offense Modification Defenses
(3) Justifications
(4) Excuses
(5) Nonexculpatory Public Policy
Failure of Proof Defenses
Failure of proof defenses consist of instances in which all elements of the offense charged cannot be proven.
They are in essence no more than the negation of an element required by the definition of the defense.
Mistake is a good example.
Offense Modification Defenses
They provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited by the definition of the offense.
Provocation is a good example for murder. Impossibility is a good example for attempt.
Justification Defenses
The harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest.
A defendant who raises a justification defense in a criminal prosecution says, in essence, “I did nothing wrong for which I should be punished.”
E.g., self-defense.
Excuse Defenses
Excuses admit that the deed may be wrong, but excuse the actor because conditions suggest that the actor is not responsible for his deed.
The criminal defendant who asserts an excusing defense says, in essence, “I admit that I did something that I should not have done, but I should not be held liable for my actions.”
Blame is inappropriate given the circumstances.
Whereas a justification negates the social harm of an offense, an excuse negates the moral blameworthiness of the actor for causing the harm.
E.g., intoxication.
Nonexculpatory Public Policy Defenses
Furthers important societal interests.
E.g., statute of limitations, diplomatic immunity, incompetency.
Internal Structure of Justification Defenses
(1) Triggering conditions permit a (2) necessary and (3) proportional response.
Triggering conditions are the circumstances that must exist before an actor will be eligible to act under a justification (some threat of harm).
The necessity requirement demands that the defendant act only when and to the extent necessary to protect the interest at stake.
The proportionality requirement places a limit on the maximum harm that may be used in protection of an interest.
Necessity (Defense)
The defense of necessity may be raised if the defendant’s actions, although violative of the law, were necessary to prevent an even greater harm from occurring.
Three essential elements to the defense:
(1) D had a reasonable belief that the act had to be done to prevent a significant evil;
(2) D had a reasonable belief that there was no adequate alternative;
(3) D had reasonable belief that the harm that would be caused was not disproportionate to the harm threatened.
Self-Defense
Self-defense is a justification defense to an otherwise unlawful use of force.
5-element self-defense test:
(1) D has a reasonable belief that…. (modifies all other elements)
A determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation” –prior knowledge of the assailant, physical characteristics, etc.
(1) The victim/aggressor is threatening force (going to use force) against the D.
(3) The victim/aggressor’s force was imminent.
(4) D’s force was necessary to protect the D from the victim/aggressor’s force.
(5) D’s force was proportional to the threatened force from the victim/aggressor.
Self-Defense: Reasonableness of Belief
In common law jurisdictions, there can be no unreasonable beliefs. D must have a reasonable belief.
In MPC jurisdictions, unreasonable beliefs can be a partial defense: mens rea matters in the belief.
Reckless mens rea in forming unreasonable belief would be manslaughter, negligent mens rea would be criminally negligent homicide.
Deadly Force
Foreseeable that someone might die.
Use of deadly force is unjustifiable at common law unless the actor is responding to actual or apparent imminent peril of death or serious bodily harm.
The Duty to Retreat
A limitation on the right to self-defense; jurisdiction split: some have it, others do not.
Rule: If target uses (1) DEADLY FORCE, there is a duty to retreat if (2) D KNOWS that the retreat can be completed in (3) COMPLETE SAFETY.
(1) The issue of retreat arises only if the defendant resorted to a deadly force; it is deadly force which is not justifiable when an opportunity to retreat is at hand.
(2) The question is whether the defendant knew, in that moment, the opportunity was there.
(3) One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury.
If there is complete safety in retreat, there can be no necessity to use self-defense.
NOTE: Some jurisdictions have Stand Your Ground laws, which eliminate the duty to retreat.
Castle Doctrine
A limitation on the duty to retreat.
Rule: If you’re in your home, there is no duty to retreat (or that duty is considered fulfilled).
Castle doctrine is unavailable to one who provokes or stimulates the conflict.
Initial Aggressor Rule
A limitation on the right to self-defense.
Rule: the initial aggressor loses their right to claim self-defense.
If IA uses force and victim responds with deadly force, IA regains right to self defense.
Right to self-defense can be restored by (2) ceasing aggression and (2) communicating that withdrawal.
Initial Instigator Rule
Some jurisdictions have it.
If one person instigates the use of force (looks like provocation), they lose their right to self-defense.
