Defenses / self defenses

Question 1

Types of Defenses

Answer 1

Failure of proof

The defense is the absence of one of the elements of thecharged crime.

Question 2

Types of Defenses

Answer 2

Justification
Some triggering conditions made the Δ’s conduct more socially useful than harmful

Question 3

Types of Defenses

Answer 3

Excuse
The Δ is suffering under some disability that makes him lack responsibility in the present circumstances

Question 4

Specific Defenses
Justification

Answer 4

Self Defense
 Necessity
 Defense of Others
 Defense of Property

Question 5

Specific Defenses
Excuses

Answer 5

Insanity
Automatism
Intoxication
Infancy
Duress
Entrapment

Question 6

Self defense justificationDC Law on self defense

Answer 6

So it is that necessity is the pervasive theme of the well defined conditions which the law imposes on the right to kill or maim inself-defense
There must have been a threat, actual or apparent, ofthe use of deadly force against the defender.
The threat must havebeen unlawful and immediate. The defender must have believedthat he was in imminent peril of death or serious bodily harm, andthat his response was necessary to save himself therefrom. These beliefs must not only have been honestly entertained, but also objectively reasonable in light of the surrounding circumstances.
It is clear that no less than a concurrence of these elements will suffice.” – U.S. v. Peterson, 483 F.2d 1222, 1229–1230 (D.C. Cir

Question 7

Considerations

Answer 7

Self-defense presupposes that the Δ committed the act.
 The denial of the act precludes a claim of self-defense
. “A claim of self-defense negatives an inference of sudden and intense passion.” – People v. Yates, 382 N.E.2d 505, 509(Ill. App. Ct. 1978) but, contradictory appellate decisions exist
 Flight, concealment or disposal of a weapon, can be used to undermine self-defense and show consciousness of guilt.
 Not available for a forcible felony

Question 8

Elements for self-defense

Answer 8

1. Threat of force against the person
    Person threatened cannot be the aggressor
   2.Danger of harm is imminent
2. Force threatened is unlawful
   4 Actual belief
   of the existence of danger
   that the kind & amount of force used is necessary
3. Reasonable belief even if mistaken
   **Once the defense is raised, the state has the burden of negating one of the elements beyond a reasonable doubt.

Question 9

Schroeder case on 273

Answer 9

Meets the elements of 1-5
1. Threat of force against the person
 Person threatened cannot be the aggressor
2.Danger of harm is imminent
3. Force threatened is unlawful
4 Actual belief
of the existence of danger
that the kind & amount of force used is necessary
5. Reasonable belief even if mistaken

Question 10

Common law English common law self defense retreat rule

Answer 10

English common law required person to “retreat to the wall.
” Exception to this rule was the “castle doctrine

Most U.S. jurisdictions have rejected the retreat rule; only a minority retain it, including MPC § 3.04(2)(b)(ii) [p. 997–998].

Compare People v. Russell (NY 1998) (applying retreat rule to gang shootout in Brooklyn housing projects) with People v.Horton, 122 N.E.2d 214, 217 (Ill. 1954) (“if a person is in a placewhere he has a lawful right to be and is unlawfully assaultedand put in apparent danger of his life, or great bodily harm, heneed not attempt to escape but may lawfully stand his groundand meet force with force, even to the taking of his assailant’slife if necessary”)

Question 11

DC middle ground approach retreat rule

Answer 11

D.C. adopts “a middle ground between the two extremes, i.e., the right tostand and kill, and the duty to retreat to the wall before [killing
“This middle ground imposes no duty to retreat, as it recognizes that,when faced with a real or apparent threat of serious bodily harm or deathitself, the average person lacks the ability to reason in a restrained mannerhow best to save himself and whether it is safe to retreat
But this middle ground does permit the jury to consider whether adefendant, if he safely could have avoided further encounter by steppingback or walking away, was actually or apparently in imminent danger ofbodily harm.
“In short, this rule permits the jury to determine if the defendant actedtoo hastily, was too quick to pull the trigger. A due regard for the value ofhuman life calls for some degree of restraint before inflicting serious ormortal injury upon another.” – Gillis v. U. S., 400 A.2d 311, 313 (D.C. 197

Question 12

Castle Doctrine retreat rule

Answer 12

Weiand (Fla. 1999) (extends castle doctrine to cover aggressions by co-occupant)
 Source of doctrine: not property rights, but sanctuary rights
 Response to domestic violence
 retreat may actually increase a battered woman’s danger
 a retreat instruction would reinforce BWS myths
 “middle ground” adopted—retreat within the home required

Question 13

Defense of Others miscellaneous doctrines

Answer 13

Common law required a personal relationship with theperson defended. Most states eliminate this requirement

Actual need of aid:
 Young: “the right of a person to defend another ordinarilyshould not be greater than such person’s right to defend himself” — alter ego rule (minority)
 DC (and most states) allow reasonable, but mistaken, defenses to be fully justified. “Given the subjective aspect of the right of self-defense, we find no rational basis for permitting an intervenor to come to the defense of a third person, with all the attendant risks, but conditioning that right on the victim’srather than the intervenor’s reasonable perceptions.” SeeFersner v. U.S., 482 A.2d 387, 392 (D.C. 1984)

Question 14

imperfect self defense miscellaneous doctrines

Answer 14

“Perfect self-defense requires not only that the killersubjectively believed that his actions were necessary for hissafety, but, objectively, that a reasonable man would so considerthem. Imperfect self-defense, however, requires no more than asubjective honest belief on the part of the killer that his actionswere necessary for his safety, even though, on an objectiveappraisal by a reasonable man, they would not be found to beso.” – State v. Faulkner, 483 A.2d 759, 769 (Md. 1984).
 Elements
 intentional or knowing killing
 acting under unreasonable belief that killing is justified
 essentially it is murder accompanied only by the subjective beliefthat the killing was in self-defense (or defense of another)

Question 15

Elements

Answer 15

Threat of force against the person  Person threatened cannot be the aggressor
2. Danger of harm is imminent
3. Force threatened is unlawful
l4. Actual belief
1. Of the existence of danger
2. That the kind & amount of force used is necessary
5. Reasonable belief, even if mistaken omitted in MPC § 3.04

Once the defense is raised, the state has the burden of negating one of the elements beyond a reasonable doubt.

Question 16

Norman NC1989

Answer 16

Could Δ reasonably believe that she was in imminent danger of death or great bodily harm?
imminent = about to suffer
the defense is rooted in necessity
primal impulse; natural law

No self-defense when aggressor has backed down.
Compare Mize (p. 283)
Has a sleeping aggressor always backed down?
Dissent: this was a continuing attack that had lasted fordecades
 Bad consequences of ruling in favor of Norman?

Question 17

Schuck MD APP 1975

Answer 17

Elements of self-defense present here:
 unlawful force used against Jackman by Parker and Voelker
 actual and reasonable belief that some force was necessary to defend Jackman
 but use of deadly force was unreasonable
 Voluntary manslaughter
 intentional killing (e.g., murder)
 mitigated by
 an honest, but unreasonable, belief that deadly force was needed to defend another, or
, the necessary use of deadly force in an instance in which defendant was at fault for its initiation

Question 18

resisting arrest

Answer 18

Curtis (Cal. 1962)
: anachronistic to allow resistance to arrest as part of self-defense
 protects personal freedom from unreasonable seizure andconfinement
 nowadays can be protected by civil rights suit
 self-defense may be used against unreasonable police force
 protects life and limb
 no easy way to make up for the potential harm

Question 19

crime prevention

Answer 19

Tenn. v. Garner (1985):
 Rule: It is an “unreasonable seizure” (4th Amdt.) to use deadly force to arrest unless:1. It is necessary to prevent escape &2. Probable cause to believe suspect poses threat of death or serious bodily harm to the officer or others
. Why is common law rule inapplicable? At common law:
 all felonies were punishable by death
 the distinction between a felony and a misdemeanor was great
 “weapons were rudimentary”
 Nationwide trend, in both state legislation and police department practice against use of deadly force.

Question 20

Defense of property

Answer 20

Clothier (Kan. 1988) (deadly force used against a car thief)
 instruction given on reasonable use of force
 refused state’s instruction limiting deadly force in defense of other property to that needed to prevent death
 Why does Tenn. v. Garner not apply to this case?
 Most states distinguish between defense of a dwelling and defense of other property.
 The use of deadly force is permitted to defend people, not the property itself.

Question 21

Citizens arrest

Answer 21

Hillsman (7th Cir. 1975) Δs mistook plain-clothes officer for a fleeing felon
 Common law of citizen’s arrest requires reasonable belief that a felony was committed & that a felony was actually committed.
 “A private person may arrest another (1) who he hasprobable cause to believe is committing in his presence (A) afelony; or (B) an offense enumerated in section 23-581(a)(2);or (2) in aid of a law enforcement officer or specialpoliceman, or other person authorized by law to make anarrest.” D.C. Code § 23-582(b)