Common Law - Defenses
General Principles
1. Even where the prosecution meets its burden in proving all elements of a crime, the defendant may raise one or more defenses.
2. Categories of Defenses
a. Failure of Proof Defenses
i. The defendant argues that the prosecution failed to prove an element of the crime charged.
b. Justification Defenses
i. The defendant’s conduct was not socially undesirable under the circumstances of the case. (i.e. self-defense)
c. Excuse Defenses
i. Although the defendant’s conduct was wrongful, she should not be punished because she is not morally blameworthy. (i.e. insanity)
d. Specialized Defenses
i. These are defenses that apply to just one or few crimes (i.e. abandonment, impossibility)
e. Non Exculpatory Public Policy Defenses
i. The societal benefit underlying the defense arises not from defendant’s conduct, but from foregoing his conviction.
ii. Statute of limitations, immunities, etc.
Self Defense Analysis
When force can be used in self defense:
1. There must be a threat, actual or apparent, of the use of force.
a. If deadly force is used in self-defense, the threatened harm must be death or serious bodily injury.
b. Idea of proportionality of force
2. The threat must be unlawful and imminent.
a. Imminency is emphasized by common law (no preemptive strikes)
i. Battered Women’s Syndrome
ii. “Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others of the protection of the law.”
3. The defendant must subjectively believe that she was in imminent peril of harm and her response was necessary to protect herself.
4. The defendant’s belief must be objectively reasonable under the circumstances.
a. A determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.”
i. These circumstances/situation include:
1. Any relevant knowledge the defendant had about that person, including those known substantially before the killing
2. Physical attributes of all persons involved.
3. Prior experiences
4. Gender but not race
Exceptions to Defense of Using Deadly Force in Self-Defense
1. Exception #1 (Aggressor):
a. The right to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:
i. The defendant withdraws from the altercation and informs the other party of her withdrawal by words or conduct, OR
ii. The other party responds to the defendant’s use of non-lethal force with lethal force, in which case the defendant may use lethal force to defend herself.
1. Defendant would be liable for the first non-lethal threat.
2. Exception #2 (Retreat)
a. The common law forbids the use of deadly force when the defendant is subjectively aware of the existence of an avenue for completely safe retreat.
i. Under the “castle” doctrine, a defendant who, through no fault of her own, is attacked in her own home is under no duty to retreat.
b. The majority rule in the United States allows the use of deadly force to repel a lethal attack, even if she can retreat in complete safety (the “no retreat” or “stand your ground” rule)
Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she has reasonable grounds for believing that force is necessary to prevent imminent harm to the third party.
3. Traditional Rule: Applied solely to those persons with whom the defendant had a special relationship, such as wife or brother.
4. Modern Rule: No distinction between strangers and relatives with regards to its application.
Defense of Property/Habitation
1. Personal Property
a. Non-lethal force may be used to protect personal property if the owner reasonably believes that force is necessary to prevent imminent, unlawful possession of the property
b. Non lethal force may also be used if reasonably necessary to recapture property if the owner acts promptly
c. Lethal force is never permitted to protect personal property even if it the only means to prevent the loss.
2. Habitation
a. Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent an imminent and unlawful entry into the home to commit a forcible felony (e.g., murder, robbery, burglary, rape, arson, etc.)
Necessity (Justification Defense)
1. The defendant must reasonably believe that there is a “clear and imminent danger.”
2. The defendant must reasonably believe that there are no effective legal methods to avert the danger.
3. The harm caused must be less serious than the harm avoided.
a. In balancing the harms, the defendant’s “actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.”
b. Given the facts as they reasonably appear, the defendant’s balancing of the harms must in fact be correct.
4. The defendant must not have been at fault for creating the emergency to be averted.
5. The balancing is not foreclosed by a legislative choice.
a. Cannot use necessity in a homicide prosecution.
Duress (Excuse Defense)
1. Elements
a. Imminent threat by another person of death or serious bodily injury against the defendant or [a member of her family - this requirement mostly gone] another if the defendant does not commit a criminal offense.
i. “A veiled threat of future unspecified harm” is insufficient
b. A well grounded fear that the threat will be carried out.
c. No reasonable opportunity to escape the threatened harm except through compliance with the demands of the coercer.
2. The defendant must not be at fault for exposing herself to the threat.
3. Cannot use duress in a homicide case
Intoxication
1. Not an affirmative defense, not applicable to strict liability offenses
2. Analysis
a. Step 1: Did the defendant becomes intoxicated voluntarily or involuntarily?
i. Intoxication is voluntary if it results from knowingly ingesting a substance that the actor knows or should know can cause her to become intoxicated, unless she was coerced to ingest it.
b. Step 2: Is the offense charged a specific intent offense or a general intent offense?
i. Voluntary intoxication is a defense to specific intent crimes if, as a result of her intoxication, the defendant did not form the specific intent required in the definition of the crime.
ii. Involuntary intoxication is a defense to both specific and general intent crimes if, as a result of her intoxication, she did not form the mental state required in the definition of the crime.
MPC - Defenses
Self Defense
1. A person is justified in using force upon another person if she believes that “such force is immediately necessary for the purpose of protecting herself against the use of unlawful force by such other person on the present occasion.” 3.04(1)
2. Two departures from the common law:
a. The actor’s subjective belief need not be reasonable.
i. Where the actor is negligent about the need to use force, she can be convicted of a negligence crime.
ii. When the actor is reckless about the need to use force, she can be convicted of a recklessness or negligence crime.
b. The MPC subs the phrase “immediately necessary” instead of “imminence”
i. Battered Women’s Syndrome
3. Deadly Force
a. The use of deadly force is authorized only to protect against death, serious bodily injury, rape, and kidnapping. MPC 3.04(2)(b)
b. Deadly force by aggressors.
i. The MPC prohibits the use of deadly force by a person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter,” unless he withdraws.
ii. Difference between common law - you have to be an aggressor of deadly force.
c. Retreat
i. The MPC prohibits the use of deadly force by a person who “knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting claim of right thereto or by complying with a demand that he abstain from any action,” but retreat is not required from his dwelling or place of work (unless the attacker is a co-worker)
Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she subjectively believes that force is necessary to prevent imminent harm to the third party.
Necessity
1. The “choice of evils” defense under MPC 3.02 is different from (and broader than) the common law in three primary respects
a. The MPC rejects the imminence requirement
b. The defendant may claim the defense even if she was at fault in bringing about the situation requiring the choice of evils or appraising the necessity for her conduct.
i. If the defendant was negligent in bringing about the necessity, she may be prosecuted for a crime of negligence.
ii. If the defendant was reckless in bringing about the necessity, she may be prosecuted for a crime of recklessness or negligence.
c. The defense is available in homicide prosecutions
Duress
1. Duress is an affirmative defense to unlawful conduct if:
a. The defendant was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person, AND
b. A person of “reasonable firmness” in the defendant’s situation would have been unable to resist the coercion.
2. The defense is also available if the defendant reasonably, but erroneously, believed that a threat to use unlawful force was issued.
3. The defense is unavailable if the mistake in that regard was reckless or negligent and the defendant was prosecuted for a crime of similar culpability.
4. Differences from Common Law
a. No imminency requirement in the MPC
b. The threatened harm need not be a threat of death or serious bodily injury. Must be a threat of physical harm.
c. The imperiled person need not be the defendant or a member of her family
d. The defense is available in homicide prosecutions
Intoxication
1. General Rule: Intoxication, voluntary or involuntary, is a defense to a crime if, as a result of the intoxication, the defendant lacked the mental state required for an element of the crime.
a. I.e., intoxication led you to do something without knowingly doing so.
2. Exception: When recklessness is an element of the offense, the defendant cannot negate the recklessness element with evidence of voluntary intoxication.
General Principles
1. Even where the prosecution meets its burden in proving all elements of a crime, the defendant may raise one or more defenses.
2. Categories of Defenses
a. Failure of Proof Defenses
i. The defendant argues that the prosecution failed to prove an element of the crime charged.
b. Justification Defenses
i. The defendant’s conduct was not socially undesirable under the circumstances of the case. (i.e. self-defense)
c. Excuse Defenses
i. Although the defendant’s conduct was wrongful, she should not be punished because she is not morally blameworthy. (i.e. insanity)
d. Specialized Defenses
i. These are defenses that apply to just one or few crimes (i.e. abandonment, impossibility)
e. Non Exculpatory Public Policy Defenses
i. The societal benefit underlying the defense arises not from defendant’s conduct, but from foregoing his conviction.
ii. Statute of limitations, immunities, etc.
Self Defense Analysis
When force can be used in self defense:
1. There must be a threat, actual or apparent, of the use of force.
a. If deadly force is used in self-defense, the threatened harm must be death or serious bodily injury.
b. Idea of proportionality of force
2. The threat must be unlawful and imminent.
a. Imminency is emphasized by common law (no preemptive strikes)
i. Battered Women’s Syndrome
ii. “Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others of the protection of the law.”
3. The defendant must subjectively believe that she was in imminent peril of harm and her response was necessary to protect herself.
4. The defendant’s belief must be objectively reasonable under the circumstances.
a. A determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.”
i. These circumstances/situation include:
1. Any relevant knowledge the defendant had about that person, including those known substantially before the killing
2. Physical attributes of all persons involved.
3. Prior experiences
4. Gender but not race
Exceptions to Defense of Using Deadly Force in Self-Defense
1. Exception #1 (Aggressor):
a. The right to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:
i. The defendant withdraws from the altercation and informs the other party of her withdrawal by words or conduct, OR
ii. The other party responds to the defendant’s use of non-lethal force with lethal force, in which case the defendant may use lethal force to defend herself.
1. Defendant would be liable for the first non-lethal threat.
2. Exception #2 (Retreat)
a. The common law forbids the use of deadly force when the defendant is subjectively aware of the existence of an avenue for completely safe retreat.
i. Under the “castle” doctrine, a defendant who, through no fault of her own, is attacked in her own home is under no duty to retreat.
b. The majority rule in the United States allows the use of deadly force to repel a lethal attack, even if she can retreat in complete safety (the “no retreat” or “stand your ground” rule)
Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she has reasonable grounds for believing that force is necessary to prevent imminent harm to the third party.
3. Traditional Rule: Applied solely to those persons with whom the defendant had a special relationship, such as wife or brother.
4. Modern Rule: No distinction between strangers and relatives with regards to its application.
Defense of Property/Habitation
1. Personal Property
a. Non-lethal force may be used to protect personal property if the owner reasonably believes that force is necessary to prevent imminent, unlawful possession of the property
b. Non lethal force may also be used if reasonably necessary to recapture property if the owner acts promptly
c. Lethal force is never permitted to protect personal property even if it the only means to prevent the loss.
2. Habitation
a. Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent an imminent and unlawful entry into the home to commit a forcible felony (e.g., murder, robbery, burglary, rape, arson, etc.)
Necessity (Justification Defense)
1. The defendant must reasonably believe that there is a “clear and imminent danger.”
2. The defendant must reasonably believe that there are no effective legal methods to avert the danger.
3. The harm caused must be less serious than the harm avoided.
a. In balancing the harms, the defendant’s “actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.”
b. Given the facts as they reasonably appear, the defendant’s balancing of the harms must in fact be correct.
4. The defendant must not have been at fault for creating the emergency to be averted.
5. The balancing is not foreclosed by a legislative choice.
a. Cannot use necessity in a homicide prosecution.
Duress (Excuse Defense)
1. Elements
a. Imminent threat by another person of death or serious bodily injury against the defendant or [a member of her family - this requirement mostly gone] another if the defendant does not commit a criminal offense.
i. “A veiled threat of future unspecified harm” is insufficient
b. A well grounded fear that the threat will be carried out.
c. No reasonable opportunity to escape the threatened harm except through compliance with the demands of the coercer.
2. The defendant must not be at fault for exposing herself to the threat.
3. Cannot use duress in a homicide case
Intoxication
1. Not an affirmative defense, not applicable to strict liability offenses
2. Analysis
a. Step 1: Did the defendant becomes intoxicated voluntarily or involuntarily?
i. Intoxication is voluntary if it results from knowingly ingesting a substance that the actor knows or should know can cause her to become intoxicated, unless she was coerced to ingest it.
b. Step 2: Is the offense charged a specific intent offense or a general intent offense?
i. Voluntary intoxication is a defense to specific intent crimes if, as a result of her intoxication, the defendant did not form the specific intent required in the definition of the crime.
ii. Involuntary intoxication is a defense to both specific and general intent crimes if, as a result of her intoxication, she did not form the mental state required in the definition of the crime.
MPC - Defenses
Self Defense
1. A person is justified in using force upon another person if she believes that “such force is immediately necessary for the purpose of protecting herself against the use of unlawful force by such other person on the present occasion.” 3.04(1)
2. Two departures from the common law:
a. The actor’s subjective belief need not be reasonable.
i. Where the actor is negligent about the need to use force, she can be convicted of a negligence crime.
ii. When the actor is reckless about the need to use force, she can be convicted of a recklessness or negligence crime.
b. The MPC subs the phrase “immediately necessary” instead of “imminence”
i. Battered Women’s Syndrome
3. Deadly Force
a. The use of deadly force is authorized only to protect against death, serious bodily injury, rape, and kidnapping. MPC 3.04(2)(b)
b. Deadly force by aggressors.
i. The MPC prohibits the use of deadly force by a person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter,” unless he withdraws.
ii. Difference between common law - you have to be an aggressor of deadly force.
c. Retreat
i. The MPC prohibits the use of deadly force by a person who “knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting claim of right thereto or by complying with a demand that he abstain from any action,” but retreat is not required from his dwelling or place of work (unless the attacker is a co-worker)
Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she subjectively believes that force is necessary to prevent imminent harm to the third party.
Necessity
1. The “choice of evils” defense under MPC 3.02 is different from (and broader than) the common law in three primary respects
a. The MPC rejects the imminence requirement
b. The defendant may claim the defense even if she was at fault in bringing about the situation requiring the choice of evils or appraising the necessity for her conduct.
i. If the defendant was negligent in bringing about the necessity, she may be prosecuted for a crime of negligence.
ii. If the defendant was reckless in bringing about the necessity, she may be prosecuted for a crime of recklessness or negligence.
c. The defense is available in homicide prosecutions
Duress
1. Duress is an affirmative defense to unlawful conduct if:
a. The defendant was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person, AND
b. A person of “reasonable firmness” in the defendant’s situation would have been unable to resist the coercion.
2. The defense is also available if the defendant reasonably, but erroneously, believed that a threat to use unlawful force was issued.
3. The defense is unavailable if the mistake in that regard was reckless or negligent and the defendant was prosecuted for a crime of similar culpability.
4. Differences from Common Law
a. No imminency requirement in the MPC
b. The threatened harm need not be a threat of death or serious bodily injury. Must be a threat of physical harm.
c. The imperiled person need not be the defendant or a member of her family
d. The defense is available in homicide prosecutions
Intoxication
1. General Rule: Intoxication, voluntary or involuntary, is a defense to a crime if, as a result of the intoxication, the defendant lacked the mental state required for an element of the crime.
a. I.e., intoxication led you to do something without knowingly doing so.
2. Exception: When recklessness is an element of the offense, the defendant cannot negate the recklessness element with evidence of voluntary intoxication.
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