Defenses / self defenses Flashcards
Types of Defenses
Failure of proof
The defense is the absence of one of the elements of thecharged crime.
Types of Defenses
Justification
Some triggering conditions made the Δ’s conduct more socially useful than harmful
Types of Defenses
Excuse
The Δ is suffering under some disability that makes him lack responsibility in the present circumstances
Specific Defenses
Justification
Self Defense
Necessity
Defense of Others
Defense of Property
Specific Defenses
Excuses
Insanity
Automatism
Intoxication
Infancy
Duress
Entrapment
Self defense justificationDC Law on self defense
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
Considerations
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
Elements for self-defense
- Threat of force against the person
Person threatened cannot be the aggressor
2.Danger of harm is imminent - Force threatened is unlawful
4 Actual belief
of the existence of danger
that the kind & amount of force used is necessary - 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.
Schroeder case on 273
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
Common law English common law self defense retreat rule
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”)
DC middle ground approach retreat rule
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
Castle Doctrine retreat rule
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
Defense of Others miscellaneous doctrines
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)
imperfect self defense miscellaneous doctrines
“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)
Elements
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.
Norman NC1989
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?
Schuck MD APP 1975
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
resisting arrest
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
crime prevention
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.
Defense of property
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.
Citizens arrest
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)
