third third Flashcards
Necissity common law
choice of evils
The actor must be faced with a choice of evils or harms and he must choose to commit the lesser of the evils
Reasonable Belief: necessity
- The harm that D seeks to prevent must be greater than the harm he reasonably expects to cause
- Balancing of harm is conduct by the judge or jury; D’s belief that he is acting properly is not sufficient.
• In determining whether D chose the lesser of two evils
a reasonable person in D’s shoes, at the moment of decision, would have believed was the better choice.
o The after-the-fact unforeseeable reality is not relevant.
→ Don’t need proof that greater harm is averted, only that it
is REASONABLE that greater harm will be averted.
CL D justified in violating law if:
(1) Necessary (no adequate alternative)
(2) Immediate and clear harm averted (Dire)
(3) Significant harm averted [D believes he can abate harm. Harm must be significant]
(4) No effective legal way to avert harm [no purposeful killing of another]
(5) Reasonable belief that factual conditions for defense exist
[(6) Correct value judgment that harm believed to be averted is greater than that believed to be caused by conduct]
(7) W/o Fault- Not to blame for creating need for act
***Possible to not meet elements, as long as you reasonably believe that act is necessary and averted harm is greater, immediate, and significant.
MPC – §3.02 “CHOICE OF EVILS” JUSTIFICATION
a) The actor believes that the conduct is necessary to avoid harm to himself/another;
(b) The harm sought to be avoided is greater than the harm of the offense
(c) A statute does not say you can’t (legislative intent to exclude the justification)
If the actor was reckless or negligent in bringing about the emergency, the defense is unavailable
• Recklessness or negligence prove the actors guilt
Unlike CL, MPC does not say reasonably believed
If you made a mistake or brought about the situation yourself then the defense has limited application, but is not a complete bar.
Elements/Requirements of the defense: Necessity
- “Clear and imminent danger/harm” – actor must be seeking to avoid imminent harm, i.e., harm that appears likely to occur immediately.
a. This rule is strictly enforced: if there is sufficient time to seek a lawful avenue, the actor must take that. - Casual element—the actor must reasonably believe that his actions will abate the threatened harm
- Reasonable belief that the harm to be caused is less serious than the harm he seeks to avoid
- Actor is blameless—some jurisdictions require actor is not at fault in creating the necessity
Limitations to CL Necissity
- Unclear but probably NOT a defense to homicide
- Must be a situation created by nature forces (not due to actor’s fault or negligence)
- Only for protection of person/property
§3.02(1) → Compare specific harm avoided to abstract harm that would come from intended actions [up to finder of fact]
• Allowed if D actually BELIEVE preventing greater harm
o Must be right about which is greater harm
o Can be reasonably mistaken about certain facts
o Ex: how big lifeboat is or if the town will burn
§3.02(1)(b)+(c): Defense unavailable where specific situation has been addressed by code or legislature
§ 3.02 Limitations to Necessity
- Actor must believe conduct necessary to avoid evil.
- Nec. must arise from attempt by avoid greater harm/evil- equal or lesser harm≠ necessity.
- Balance of evils- determined by jury. (Even if genuine believe $> others life. Question for jury.
- No defense if issue of competing values already decided
§3.02(2) D does not automatically lose benefit of defense if he was at fault in creating the necessitous situation.
Ex: Reckless or negligent in belief that conditions are present → liable for acts w/ recklessness or negligence as culp but DEFENSE for crimes of P/K
• Ex: Statute says reckless; you drive recklessly and get run out of the road → not allowed to use defense b/c situation brought about in reckless manner
• “as the case may” = if you are negligent then you are charged with negligence but if you are reckless then you are both reckless and negligent
Nelson v. State—
— D convicted of reckless destruction of personal property and joyriding. D’s truck got stuck in a marshy area off of the highway in the middle of the night and he was afraid it would tip over. He took 2 vehicles from the Highway Dept. w/out permission. He damaged them trying to free his truck. He had no success and just went to sleep until he was found. Held: The defense of necessity may be raised if D’s actions (though unlawful) were necessary to prevent an even greater harm from occurring.
Three essential elements: of necessitt
) the act charged must have been done to prevent a significant evil;
2) there must have been no adequate alternative;
3) the harm caused must not have been disproportionate to the harm avoided.
D is correct that defense is available if person acted in reasonable belief that emergency existed and there were no alternatives even if that belief was mistaken. There is no reasonable belief that this was an emergency here—D had alternatives and he knew it.
The Queen v. Dudley and Stevens
3 men and a 17 year old youth were stranded on a lifeboat. After about 3 weeks (during most of which time they were without food or water) 2 of the men killed the youth, who was very sick, so that the survivors could eat his remains in order to survive. The two men who participated in the killing were prosecuted for murder. The court rejected their necessity claim. Court said, “it is not suggested that in this particular case the deeds were ‘devilish,’ but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime.” Public policy~ people might use this defense in the future to hide behind when they have in fact committed an atrocious crime.
Argument for Partial Defense Even If No Belief
- Persons, who try to do wrong, but do not, shouldn’t be punished as much as those who actually do wrong. (Attempts punished less than completed offenses).
- Those who engage in prohibited conduct but, unbeknownst to them are justified, have tried to do wrong, but have not.
Therefore, they should be punished less
MPC necessity is a defense to murder..
but only when need for killing is to prevent greater harm (can’t have equal alive and dead) → Cannot take 1 life to save another 1 life.
Necessity no defense to murder [Dudley and Stephens]
“Double effect”
some cases of causing the death of one to save another is acceptable; you can’t act with the intent or purpose of taking an innocent life but you can act in a way that will result in that effect so long as it is not your purpose
• Goal is to kill (murder) vs. Death is known side effect (involuntary) = same result but can’t have purpose of killing innocent.
• Distinguishes between purpose and knowledge
• Ex: dropping bombs in town to destroy factory vs. trying to destroy people
Interpretations: Never justifiable at CL to
kill an innocent person een to save a greater number of lives
Conjoined Twin Case and Roman Catholic “double effect”
- One should not cause effects that are directly evil even if they are thought to be a necessary means to a greater good
- if the purpose is to do something permissible or good, even if the effect is death→ the death is permitted, not intended, and is not itself a means to save someone, but rather an unintended side-effect.
- This explains the conjoined twin case—the intent was to save Jodie (not kill Mary). Mary’s death was a side-effect
Where killing of innocent is reasonably believed necessary to save more than one life:
- Murder (traditional CL)
- Murder only is sufficiently possible that privilege will be abused (CL-policy argument)
- Murder only if killing is part of plan/purposeful (CL-conjoined twins)
Neciessity limitations in some states
- Situations created by natural forces [ex: tornado]
- Does NOT apply to homicide cases
- Only for protection of persons and property
- If at fault for bringing about situation, NO defense.
Excuse Defenses (SEE NEXT PAGE)
• Admit that act may be wrong, but excuses actor b/c conditions suggest that actor is not responsible for act
• Negates moral blameworthiness of actor for causing harm
• Human force (opposed to necessity defense: natural force)
General defense; applicable to all offenses even though elements of offense are satisfied
VIEW 2 “Majority view”:
DURESS
- No fair opportunity to comply with law (no free choice)
- It would be hypocritical to send you to jail; we would have done the same in your shoes.
- Retributivists: It was wrong but the actor is not responsible for his action
- Utilitarians: It was wrong, but punishment will not do any good (no deterrence
CL: excuse if yielded under imminent threat of death of SBH
MPC: excuse yielded if threat greater than person of reasonable firmness could handle.
Causation Theory
person should not be blamed for her conduct if it was caused by factors outside her control. Not blamed for being mentally ill or victim of coercion.
Choice theory
people should be punished for bad choices. Where people act based upon pressure of duress, it’s not a standard bad choice b/c person has not had a fair opportunity to practice his free will. Need fair opportunity to (1) understand facts (2) appreciate violation of societal mores (3) conform conduct to law
Duress CL
- Another person threatened imminent serious bodily injury or death to her/another
a. threat must be deadly
b. lesser threat, such as to cause minor physical injury or to cause economic or reputational harm, will not suffice
c. deadly force threatened must be “present, imminent, and impending.”
i. (must be operational on the actor’s will at the time of the criminal act”
d. no reasonable lawful alternative to acceding to the threat - reasonable belief/fear that the threat will be carried out
a. coercer is serious
b. coercer has the capacity to inflict the harm immediately - no reasonable opportunity to escape the threatened
Duress mental element
reasonable belief that if you don’t act in a particular way you’ll be subject to bodily harm
[Limitation: threat must be to you or close [family] member; only applies to body integrity; limited to threats of unlawful force, not applicable to coercion from natural sources]
§2.09(1) It is an affirmative defense Duress
because he was coerced to do so by the use of, or a threat to use, unlawful force against his person (or another), that a person of reasonable firmness in his situation would have been unable to resist.
• No defense for recklessness
MPC duress treats duress as
an excuse defense. Must show that:
(a) he committed an offense because he was coerced to do so by another person’s use, or threat to use, unlawful force against him/another; and
(b) a person of reasonable firmness would have committed the offense.
MPC Duress is
1) “deadly threat” and imminency requirements of CL do NOT apply
2) permits duress claim to be based on prior use of force and not simply a threat of future harm
3) threat of force must be unlawful (like in CL)—limited to human caused coersion
4) The force used or threatened need not be deadly, as required at CL. Any form of physical harm will suffice.
5) But, like in CL economic threats or threats to reputation will not suffice
6) A person of reasonable firmness in D’s situation would have been unable to resist the coercion.
7) No bar to use of duress for homicide
United States v. Contento-Pachon SUFFICIENT EVIDENCE OF DURESS FOR JURY—not necessity
D charged w/ unlawful possession of cocaine w/ intent to distribute. Sought necessity and duress defense due to alleged threats against him (kill his family) by his employer if he did not follow orders. HELD: Necessity defense cannot apply b/c D’s acts were coerced by human, not physical forces nor did he act to promote general welfare to society. Duress defense DOES apply.
Intolerable Prison Conditions
• originally courts did not permit inmates to raise prison conditions as a defense to their escapes
• today it is recognized as a limited defense
o some courts require the escapee to turn herself in after the escape or the defense is automatically lost
o other courts are more lenient and treat an escapee’s failure to turn herself in as just one factor to be considered by the jury in determining whether escapee should be acquitted (People v. Unger)
People v. Unger NECESSITY APPLIED TO PRISON ESCAPE CASE
People v. Unger NECESSITY APPLIED TO PRISON ESCAPE CASE
D escaped confinement after threats by an inmate with a knife to engage in homosexual activities. D did not report the incident to the authorities out of fear of retaliation. D had already been assaulted and sexually molested by 3 inmates. On the day of his escape, he received a call on an institution phone and the caller threatened his life if he reported the assault to prison authorities. D claims that he left the prison to save his life and planned to come back after he could get someone to help him. HELD: Necessity defense, rather than duress, applies to the prison escape case. D was not deprived of free will of imminent physical harm, but rather, was forced to choose b/w 2 evils (escaping prison or sexual assault).
Duress & Murder Defense?
• Full Affirmative Defense?
o No
• Negate Malice aforethought, so manslaughter?
o No – misdirected retaliation doctrine.
• Defense to premeditated murder?
o Yes, if it negates premeditation
• Felony Murder?
o Yes, if defense to felony will disable FMR
• Depraved heart murder?
o Possibly, if it negates conscious indifference to the risks
People v. Anderson~ when confronted with an apparent kill an innocent person or be killed situation
a person can always choose to resist. The law should require everyone to seek an alternative to killing—even if the result is your own death
Duress is usually
Duress is NOT an affirmative defense to murder [Anderson] (However, CL- may still raise a FOP claim)
• M1 = Duress may negate premeditation – if it results in the killing not being premeditated
-case by case analysis
- gun to head and say Kill right now, if not
that immediate would still have time to
reflect and then no defense.
• Intent-to-kill murder = not an affirmative defense. Does not negate malice aforethought.
• M2 = Duress WON’T reduce it to manslaughter. -
• But could make a failure of proof claim (no malice) and get reduced that way.
• Depraved heart murder = Duress may negate anti-social motive; lack of justification; if are acting to save own life –may not have wanton disregard [footnote i p.599]
o Defense insofar as it may negate consciousness or bad motive
• FMR = Duress may be defense to felony if it negates the underlying felony → disable FMR
Involuntary intoxication can be a defense:
Lack of mens rea: As the result of involuntary intoxication, the actor lacked the requisite mental state of the offense for which he was charged. Here, involuntary intoxication is a valid failure of proof claim to crimes of specific intent AND general intent.
Four circumstances where Intoxication is involuntary (MPC 2.08(5)(c)):
- Coerced intoxication (such as forced at gunpoint)
- Innocent mistake resulting in intoxication (such as spiked food)
- Unexpected intoxication from prescribed medication, perhaps due to an allergic reaction
- “Pathological intoxication” (the actor’s intoxication is “grossly excessive in degree, given the amount of intoxicant, to which the actor does not know is susceptible.”)
Actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] due to involuntary intoxication. MPC 2.08(1)
• A person is not guilty of a specific-intent offense, if as the result of voluntary intoxication,
he lacked the capacity to form the specific mental state required for the crime, however, voluntary intoxication does not exculpate for general-intent offenses.
Intoxication and Homicide:
In many jurisdictions, where first degree murder includes “willful, deliberate, premeditated” killing, and D introduces evidence that because of intoxication he did not meet these requirements, crime may be reduced to second-degree murder. Felony Murder (see Graves)
Commonwealth v. Graves FALIURE OF PROOF
They claimed that they should not be liable b/c they were intoxicated. Held: if evidence indicated they were so intoxicated that they did not have the intent, then they could not be convicted. Here, intoxication was a failure of proof defense. Robbery is a specific intent offense. If D is so intoxicated that he does not form the specific intent to rob, he is not guilty of robbery and therefore not guilty of felony-murder.
MPC §2.08 INTOXICATION
Does not distinguish b/w “general intent” and “specific intent”. Voluntary Intoxication is a defense to any crime if it negates an element of an offense. MPC 2.08
MPC intoxication exception
Exception: If recklessness suffices to convict, if the defendant’s actual culpability is that of negligence —she should have been aware that her conduct created a substantial and unjustifiable risk of harm, she can be convicted of offenses requiring recklessness (which usually requires actual awareness) if the reason for her failure to perceive the risk is her self-induced intoxication. MPC 2.08(2)
Recklessness in getting intoxicated is transferred to the offense.
INCHOCATE OFFENSES—ATTEMPT
After formation of MR, before attainment of goal; unfinished crime; allows police to arrest before crime is actually committed
An attempt occurs when a person
with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than mere preparation for, the target offense.
