Failure of Proof Defensive Theories and Rebuttals

Failure of Proof Defensive Theories and Rebuttals:
- Failure-of-proof defense: not a true defense in that it doesn’t add another element, rather asserts
that P can’t prove the elements BARD as is required. Attacks P’s evidence.
- Rebuttal: similar to failure-of-proof defense, but involves factual testimony offered by D that
inferentially contradicts an element (ex. alibi). D offers a new factual theory that collides w/P’s
theory.
- Alibi: inferentially contradicts that D committed the crime, which is an essential element that P
must prove BARD. Only rebuts D’s guilt inferentially. Generally mere denial of presence at a
crime scene doesn’t earn alibi instruction, but testimony establishing D’s presence at another
specific location does.
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o Some cts instruct the jury about it, telling jurors that they must acquit if witnesses placing
D away from the crime scene have created a reasonable doubt (logically, this instruction
shouldn’t be necessary, but it counteracts the pejorative nature of the term “alibi”).
o Many jurisdictions require D to give pre-trial notice before offering an alibi.
o Fed Rules require the gov’t to give notice if it intends to call rebuttal witnesses to a
noticed alibi to enable D to investigate.
o Needn’t be fully persuasive as long as it creates reasonable doubt, which often causes a
dilemma for D’s atty re: whether to present alibi witnesses who aren’t totally credible.
One possible solution: put the strategic decision on the record by having D answer ?s
from ct about the decision to omit alibi witnesses (note: this still failed in Jacobs).
- Generally, however, rebuttals and failure of proof defenses aren’t really separate legal categories.
- In some jurisdictions, self-defense is a defense, while insanity is an affirmative defense.
- Note: The first element of every crime is that it was committed by D charged w/it; it is part
of P’s burden to prove this BARD.
- An effort to raise a reasonable doubt about any element or to introduce a contradictory theory or
rebuttal isn’t a defense. Rather these are efforts to prevent P from carrying its burden of proof.
- State v. Deffebaugh (KS Sup Ct, 2004): involved a statute requiring D provide notice before
offering evidence of an alibi. Ruled that an alibi may be given even when D has failed to give
notice of the alibi witness if P otherwise was aware of such witness and could have
previously questioned him.
- State v. Tutson (CT App. 2004): held that evidence that a described vehicle was in a specific
distant location wasn’t an alibi for purposes of the notice requirement, even though the vehicle
was identified w/D (note: KS probably would’ve ruled differently based on Deffenbaugh).
- United States v. Llinas (1st Cir. 2004): held that documents weren’t “witnesses” and therefore
employment records dealing w/D’s presence at work weren’t covered by the notice-of-alibi
requirement.
- Clinkscale v. Carter (6th Cir. 2004): although the ct denied habeas corpus, a concurring judge
invited D to file another petition asserting that his counsel was ineffective for presenting an alibi
that the jury was unlikely to credit.
- Jacobs v. State (FL, 2004): granted a hearing to determine whether counsel was ineffective for
not presenting alibi witnesses he’d noticed at the pretrial stage, even though the fact of pretrial
notice lends itself to the conclusion that the decision may have been strategically better for D.
Justification: (see definition above)
- Not all cts agree on whether certain defenses fall under justification, excuse, or another category.
Ex. provocation.
- The difference b/t justifications and excuses sometimes determines policy difference in
treatment. If the conduct was justified, the law may be broader in exonerating D than if it’s
merely subject to an excuse.
- The scant info available suggests that formal defenses are generally important to the theory of
crim law, but seldom used at trial, some defenses are almost never used, and they play only a
minor role in the non-judicial resolution of crim cases. Self-defense leads the pack, and is only
used in 2% of trials. The possible use of a defense had an impact in 7% of cases, almost always
by affecting a plea agreement or leading to dismissal.
Self-Defense:
- Self-defense: a justification defense for a proportionate response to an imminent threat.
o A vague threat of future violence or use of excessive force may not be justified. In many
jurisdictions the use of deadly force is restricted more than that of non-deadly force.
o A mistaken belief in the need for it can raise it in most jurisdictions (ex. toy gun), as
long as there was an objectively reasonable belief that the attack was real (v. an honest
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but unreasonable subjective belief). However, the MPC has a subjective standard,
requiring only a subjective but honest belief in the need for self-defense, with no
requirement of reasonableness or imminence.
- Imperfect self defense: an unreasonable belief, not sufficient for acquittal, but sufficient to
reduce the crime’s grade. Many states offer an incomplete defense, lessening the charge from
M to MS, where D’s belief that she was under immediate attack is honest but unreasonable.
Some allow for this where D provokes the initial conflict. The MPC recognizes this where the
self-defense belief is negligent or reckless, but may not completely exonerate D.
- The castle rule: Many jurisdictions make an exception to the retreat rule, holding that there’s no
duty to retreat if one’s attacked in his own home. May also apply at one’s place of business.
o If one’s attacked in his place of work by a coworker, the MPC provides that he has a duty
to retreat before he can use deadly force in self-defense.
- The retreat rule: while one is never required to retreat before using non-deadly force against an
initial aggressor, some jurisdictions require retreat before using deadly force in self-defense,
if retreat can be safely achieved.
- The true man rule: there’s no duty to retreat if someone attacks you (in your home or wherever).
Is the case in many Western state.
- The aggressor rule: in many states, if D started the conflict, he can’t claim self-defense,
unless he has completely withdrawn.
- Most cases on self-defense turn on the issue of reasonable perception of the imminence of the
unlawful threat of harm facing D.
- IL statute allows such conduct to the extent that D reasonably believes it’s necessary to defend
himself or another against such other’s imminent use of unlawful force, but only justifies force
intended or likely to cause death or great bodily harm if he believes it’s necessary to prevent
imminent death or great bodily harm to himself or another, or commission of a forcible felony.
- NY’s statute allows it unless D provoked the actor w/intent to cause physical injury to another, D
was the initial aggressor (unless he later withdrew and effectively communicated such
withdrawl), or the force involved was the product of combat by agreement not specifically
authorized by law. Similarly requires force to be proportionate, but notes that there’s no duty to
retreat if D is in his own home and not the initial aggressor, or a cop (or assisting a cop), or
reasonably believe the other person is trying to commit kidnapping, forcible rape, robbery, and
burglary may compel use of deadly force.
- Self-defense straddles the tension b/t allowing citizens to protect themselves and punishing those
who unnecessarily kill/injure others.
- Boget v. State (2002): while most self-defense cases arise in the homicide or attempted homicide
context, the defense can also be invoked when non-deadly force is used, and is available as a
defense to other crimes, at least those of the assaultive type.
- People v. Goetz (NY COA, 1986): D shot 4 black youths when one asked him for $5. Ruled that
D’s belief in the need for self-defense must be reasonable. This can be based on the
circumstances facing D or his situation, but it still must be based on the objective reasonableness
of the ordinary person. D was later acquitted of all but the weapons violation.
Battered Spouse Syndrome (BSS):
- Battered Spouse Sydrome (BSS): sufferers commonly experience battering cycles, learned
helplessness, escalation of abuse, and hyper-vigilance. May be used as a defense to crim charges.
Such an instruction might increase D’s credibility in otherwise extreme cases. The usual
accommodation created by the law is reduction to voluntary MS.
- Most juris allow evidence of some subjective elements in determining who RP is and expert
evidence to address culturally-based issues re: reasonableness of D’s belief in the need for self-
defense (esp. when V was sleeping or unconscious when killed).
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- Some critics argue against this subjective standard, while feminists argue that the RP standard is
actually biased toward men and view reluctance to admit the defense and the perceived need for
expert testimony is a symptom of the law’s masculine bias.
- Evidence in BSS homicide cases usually comes mainly from D alone, and may seem dubious in
some cases; the difficulty becomes weeding out disingenuous claims from genuine ones.
- State v. Edwards (Missouri COA, 2001): D, 61, shot and killed her abusive husband in their store
because she thought he was going to kill her. Held that the standard self-defense instruction
wasn’t sufficient because it lacked a relevant subjective reasonableness specific to the syndrome.
Rule: the pattern instruction for self-defense is inappropriate for BSS cases b/c it improperly
applied the RP standard w/o reference to BSS, and precluded the jury from determining whether
D was suffering from BSS and if so, whether she had a reasonable belief that she was in
imminent danger based on what an otherwise reasonable person w/BSS would think. Shows how
“reasonable person in D’s circumstances” should be applied.
Defense of a Third Person:
- The law usually bases defense of another on that person’s right to self defense.
- Generally, the modern rule is that a reasonable belief in the 3rd person’s right of self-defense,
even if mistaken, provides a defense. Proponents of this suggest that it encourages citizens to
help each other and counteracts ppl’s unwillingness to get involved. This is the modern trend.
- The MPC approach is even more permissive: a subjective belief is enough.
- Some jurisdictions have followed a more limited defense than the reasonable belief rule - the
step into the shoes approach. Proponents of this view argue that is discourages the escalation of
violence, encouraging ppl to investigate before exacerbating a fight.
o People v. Young (NY, 1962): narrowly limited the right of defense of a third person,
holding that D had no greater right to defend an arrestee than the arrestee had for himself,
thereby rendering D’s defense invalid b/c he was mistaken about the situation.
- Covarrubias v. State (TX COA, 2000): the man who D purported to defend was actually the
unarmed aggressor in the fight, having attacked V and initiated a fist fight b/t them. Rule: D is
justified in using deadly force against another to protect a third person when the latter is
threatened by circumstance that would entitle him to protect himself, and D believes intervention
is immediately necessary.
Defense of Property (and of Habitation):
- The general principle is that moderate but not deadly force may be used to defend property
in certain instances. However, the MPC allows use of deadly force to protect property:
o In response to an attempt to dispossess the defender of his dwelling.
o In response to an attempt to commit certain felonies involving violence against the
defender.
- Many States allow greater use of deadly force than the MPC does.
- Many of the hardest cases involve poor working ppl who’re subjected to repeated burglaries and
thefts that they content cant be prevented other than by deadly force and that literally cause the
losses of their modest livelihoods.
- People v. Ceballos (CA Sup Ct, 1974): D had a trap gun in his garage due to prior burglaries; it
shot boys in an attempted burglary. Held that ppl do not have the right to use deadly devices that
discharge in their absence in order to protect their homes. Rule: a trap gun is unjustified use of
force even where if present D could have properly used deadly force b/c it lacks discretion
and creates too high a risk of killing innocents.
Law Enforcement:
- While an arrest formally fits the elements of assault, it isn’t a crime due to recognition of a law
enforcement defense may exonerate D, usually even if it was unlawful, as long as it’s undertaken
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under an honest or reasonable believe in its lawfulness. In fact, most jurisdictions don’t limit the
defense to peace officers, since citizens are allowed to make certain limited categories of arrests.
- The common law permitted even deadly force for the arrest of a fleeing felon, at least when
capital punishment applied to the underlying felony. The MPC, however, modified this, limiting
such force to cases where the underlying felony involved use or threat of deadly force or where
delayed apprehension would have created a substantial risk that the felon would’ve caused death
or serious bodily harm.
- Tennessee v. Garner (1985): imposed civil liability for damages pursuant to the Constitution and
applicable civil rights statutes when a peace officer used deadly force to stop a fleeing non-
violent felon (basically constitutionalized limits on the use of deadly force similarly to MPC).
o But this may not govern how the State defines the law enforcement defense in its
criminal statutes.