Justification and Excuse
John Hinckley shoots at Reagan. Secret Service agent shoots at Hinckley. Neither shooter is convicted of anything: Hinckley because he’s insane, Secret Service agent because it’s in his line of duty.
• Justifications are conduct rules how we should act.
• Defense of others and Necessity
• Excuses are decision rules why a particular issue may not be blameworthy.
A. Justification
(1) Defense of others and (2) Necessity (choice of evils)
1. Defense of Self and Others
Common Law Rule: (from US v. Peterson) for self-defense the circumstances must be:
• actual or apparent threat
• threat is unlawful and immediate/imminent
• defender believed he was in peril of death or serious bodily harm (def MPC 3.11) (reasonable belief)
• response is necessary (proportional) to save him (reasonable response)
• last two must be reasonable given the circumstances (MPC is subjective, NY test is objective)
MPC 3.04: Use of force is justified when actor believes force is immediately necessary to protect self against unlawful force (subject to 3.04, 3.09)
• 3.04(b) deadly force is not allowed unless the actor (reasonably) believes there is a threat of death, seriously bodily injury, rape, or kidnapping
Culpability Complications (If mistake, then imperfect self-defense):
• What if an unreasonable belief as to any of the material elements (necessary, immediate, etc)? MPC §3.09 allows prosecution for manslaughter or negligent homicide if has been reckless or negligent in reaching a mistaken self-defense belief (modifies the subjective belief rule in 3.04)
• E.g. If Goetz was reckless or negligent in concluding the youths were a threat, then no self-defense if he had committed reckless/negligent homicide (e.g. bystander). Since he committed attempted (purposeful) homicide, 3.09 does not apply. (But if committed homicide, prosecutor could charge for homicide with reckless or negligent culpability instead of murder
• imported as culpability for the homicide - so reckless mistake of necessity becomes manslaughter; negligence becomes negligent homicide
Rules/Limits
• No longer in danger once attacker is disarmed, so must stop assault
• Must use proportional force (can’t respond with deadly force/s.b.i (i.e. death or impairment §210.0) when in a headlock, but can when rape, kidnapping, etc
• No defense if actor provoked the force in the same encounter
• If you provoke w/o deadly force:
• Under Peterson, not allowed to respond with deadly force even if other party does
• Under MPC 3.04, allowed to respond with deadly force (but will be convicted of assault)
• MPC § 3.04 retreat is required before deadly force (only, not any fight) may be used except at ’s home or office, but only where defendant “knows he may retreat in complete safety”.
• MPC §3.04 assesses if actor believed use of force was “immediately necessary”.
• Third party interveners take place of the person they’re helping (only defense if person you’re helping has a defense). MPC has a defense for “reasonable” belief that defensive force was necessary, fn p771
Notes p774:
1. Limits on use of deadly force.
2. Can one claim self-defense if he was unaware of the danger?
3. Risk of injury to others.
4. Burden of proof.
People v. Goetz NY 1986 p739
• indicted for attempted murder after shooting 4 youth when they asked him for $5 on the subway.
• NY self-defense statute allows for reasonable force when necessity to use force, b/c facing an imminent threat of deadly force, robbery rape, or kidnapping.
• Holding: Test is objective, not whether “defendant reasonably believes”.
• Objective standard, NY didn’t adopt the MPC formulation. **Under MPC it’s subjective (subject to 3.09: no reckless/negligently est beliefs).
• Reasonableness may factor in ’s situation (i.e. had been mugged in the past).
• Postscript: Jury convicted Goetz of carrying unlicensed handgun, acquitted him on other counts. In civil suit, the youths got $43 million in damages.
State v. Abbott NJ 1961 p777
• Neighbors who share a joint driveway. Fistfight breaks out. Someone brings out a hatchet & a carving knife. People injured in the scuffle.
• Must one who is neither aggressor nor party to the combat retreat?
• Holding: (1) issue of retreat arises only if resorts to deadly force.
• You can stand your ground in a fistfight.
• (2) Is the retreat safe? court takes into account all the circumstances.
• Reversed conviction of assault b/c of jury instruction mis-defining rules
Defender/First Aggressor Case
United States v. Peterson DC 1973 p781
• Decedent was taking windshield wipers off Peterson’s car at Peterson’s house.
• Verbal argument, goes inside and gets his gun.
• says, “If you come in my yard I’ll shoot”. Decedent gets a tire iron and starts walking to . gives final warning, then shoots decedent.
• Holding: No self-defense to self generated necessity to kill. Peterson should’ve just stayed in his house. Going back out and pointing the gun at decedent is unnecessarily escalating the conflict. Convicted of manslaughter
Minority of states hold that if initial aggressor, after using only nonlethal force, is met by excessive, life-threatening force, he can regain his right to self-defense.
Stand your Ground laws:
15 states have enacted law that permit defender to meet force with deadly force, even when retreat is possible. NRA says it empowers the victim.
State v. Smiley FL 2006
• cab driver could have driven away but chose not to and shot passenger. Convicted of 1st degree murder but FL stand your ground laws have likely changed the result.
In jurisdictions where retreat before deadly force is required, there is always an exception in your own castle.
People v. Tomlins 1914
• Cardozo says flight is for sanctuary. And if home isn’t sanctuary, then what is? So you never have to retreat from your home.
But there’s dispute over need to retreat when one occupant kills a co-occupant.
People v. Tomkins
• Cardozo held father being threatened by his son could kill the son rather than retreat.
• MPC shares this view.
• Minnesota has recently switched to this view – State v. Glowacki.
• 2005 Florida Stand Your Ground law does not require defender to believe that suspected intruder is about to commit any other crime. Applies to home and car.
• Colorado allows use of deadly force if occupant believes intruder might use any physical force, no matter how slight, against any occupant. P790
Mistake and Self-Defense
All or nothing approach: most courts have adopted rule that defendant who killed in the mistaken belief that he was the victim of a deadly attack would entirely lose the defense if the mistake was unreasonable
Imperfect self-defense: an unreasonable but honestly held belief would reduce the killing to manslaughter
MPC approach: 3.04(1) says use of force for self-protection is justifiable when the actor believes that such force is immediately necessary; then 3.09(2) says when actor believes this but is mistaken, culpability as to that mistake (recklessness: aware of substantial risk there is no threat; negligence: should have been aware) is imported as culpability for the homicide - so reckless mistake of necessity becomes manslaughter; negligence becomes negligent homicide
• What if an unreasonable belief as to any of the material elements (necessary, immediate, etc)? MPC §3.09 allows prosecution for manslaughter or negligent homicide if has been reckless or negligent in reaching a mistaken self-defense belief (modifies the subjective belief rule in 3.04)
• E.g. If Goetz was reckless or negligent in concluding the youths were a threat, then no self-defense if he had committed reckless/negligent homicide (e.g. bystander). Since he committed attempted (purposeful) homicide, 3.09 does not apply. (But if committed homicide, prosecutor could charge for homicide with reckless or negligent culpability instead of murder
Defender / Aggressor
• Peterson Doctrine
o In most states initial aggressor forfeits his right to self-defense; minority of states allow aggressor to regain right if met with a life-threatening response, provided there is no opportunity to flee.
US v. Peterson (F.2d 1973): Danger had already passed when defendant retrieved gun from his home; no self-defense for those who incite fatal argument or promote necessity of taking life.
• Under MPC §3.04 initial aggressor is responsible, with exception for especially disproportionate response justifying use of deadly force but not excusing the provocative assault.
o When initial defender exceeds the bounds of force necessary to repel an attack, he uses unlawful force justifying the response of the initial attacker.
o §3.04(2)(b)(i) does not deprive initial attacker of justification on the ground of the initial attack unless he entered the encounter with the purpose of causing death or serious harm
• Scenarios
o A (moderate force) --> B (responds with moderate force)
No self defense for A
o A (moderate force) --> B (responds with deadly force)
Use of deadly force justified by A, though he is still liable for initial assault
o A (deadly force) --> B (responds with deadly force)
Use of deadly force not justified by A, since he incited necessity of taking life
Bystanders & Self-Defense
Common Law Rule: People v. Adams: reversing D’s manslaughter conviction of bystander when he, acting in self-defense, shot and killed assailant and bullet passed through his body, striking her
Commonwealth v. Fowlin: dismissing aggravated assault and reckless endangerment charges of D who was blinded with pepper spray and shot several times in direction of attackers while at club with 200 other people present - if valid self defense, cannot be deemed reckless
MPC Rule: Different approach in MPC 3.09: allows prosecution for manslaughter or negligent homicide if the defendant has been reckless or negligent, respectively, in reaching a mistaken belief
Burden of Proof
Most states put burden of production on to show evidence of self-defense, then burden of persuasion falls on π to prove beyond a reasonable doubt that it wasn’t self-defense.
-But see Martin v. Ohio, which requires to prove self-defense by preponderance of evidence; upheld as constitutional by SCOTUS because self-defense wasn’t an element of the crime charged.
Battered Women
Defense attorney: Learned helplessness: feel they can’t leave, so threat seems inevitable
Prosecution: threat never seems imminent, immediate---they can leave. Killing isn’t helpless. Why do only some murder?
• Imminence is the biggest hurdle!
State v. Kelly NJ 1984 (reckless manslaughter): Battered women’s syndrome recognized
• Kelly stabbed husband with scissors and he died.
• Trial court said expert testimony about battered women syndrome was inadmissible for self-defense issue. Disputed facts, but he had beat her over the course of several years.
• Self defense: necessary, immediate (broader than imminent), threat of death/serious bodily harm
• Holding: Expert can testify about ’s failure to leave her husband over course of the marriage. But not about the reasonableness of the perceived threat on the day of the killing.
• Standard is that of a reasonable person, not a reasonable battered woman.
State v. Norman NC 1989 (no defense, voluntary manslaughter): Battered women’s syndrome not recognized, instead an objective standard was used
• Husband was abusive for 25 years.
• Day before killing, beat her badly, police & paramedics came, but he wasn’t arrested. Later beat her again. She removed kids from the house, returned with a pistol. Gun jammed, she fixed it and shot him 3 times, “to make sure”.
• Holding: In NC, acquittal only be “perfect self-defense”. There must be (1) reasonable belief of imminent harm in (2) person with ordinary firmness of mind.
• All evidence showed had ample time to resort to other means of preventing abuse danger of bodily harm wasn’t imminent.
• Subjective belief that husband will inevitably kill her doesnt equal imminent.
• A killing by a woman suffering from “battered wife syndrome” cannot be done in self-defense unless death or serious bodily harm is imminent.
Meltzer likes: reasonably necessary rule instead of immediate or imminent, then let jury decide.
Other Imminent Danger cases:
State v. Schroeder: inmate stabs sleeping roommate who credibly threatened him; court refuses
self-defense instruction
Ha v. State: inevitable violence is not a substitute for imminence; no self-defense
Jahnke v. State: no self defense for premeditated killing of abusive parent; defense would be
“antithetical to the mores of modern civilized society” and allowing abusive conduct to justify
killing “would amount to a leap into the abyss of anarchy”
2. Necessity (Choice of Evils)
Common Law Limits:
• Harm to be avoided is grave
• No prior fault of ∆ in creating the harm to be avoided (no provoking)
• Emergency—choice arose suddenly
• Harm is imminent
• Balance of evils: benefit clearly outweighs harms (only one to require this—not self-d or duress)
• ∆ belief that action is necessity was not only reasonable but correct
• Not a defense to homicide
Regina v. Dudley and Stephens 1883 p73
• Shipwreck cannibals. Victim not consulted. Stephens and Dudley complicit, but Brooks still ate him.
• If they hadn’t eaten him, they probably wouldn’t have survived.
• Holding: Rejected necessity as a defense. Never a defense of killing an innocent. No absolute or unqualified duty to preserve one’s own life.
• Dispo: murder.
United States v. Holmes 1842 p810
• Shipwreck, people on lifeboat.
• First mate ordered all male passengers whose wives were not in the boat to be thrown overboard.
• 18 people jettisoned before lifeboat arrived.
• Holding: Normally, neither is bound to save another’s life by sacrificing his own, nor would either commit a crime in saving his own life for the only means of safety. But different with sailor / passenger special relationship.
• Dispo: manslaughter.
State v. Unger IL 1977 p798 (choice: threat of assault vs. prison break)
• in jail for theft. Threatened and sexually assaulted by other inmates escapes from jail.
• Issue: Should jury be instructed to disregard reasons for escape / compulsion & necessity?
• Holding: Defense of necessity is correct jury instruction. Not deprived of free will, but forced to choose between two admitted evils. A consideration that didn’t report to authorities, but just one of several facts. Remanded for new trial.
• ** but subsequently United States v. Bailey: held contrary to Unger that necessity defense requires that D make a bona fide effort to surrender as soon as the duress or necessity has lost its coercive effect.
• Justification, not excuse
Borough of Southwark v. Williams p801 (Note: civil case)
• Homeless people start squatting in empty houses. Raised necessity defense.
• Holding: Defense of necessity on in great and imminent danger in order to preserve life. Doctrine allowing encroachment on private property to preserve life must be carefully circumscribed. (not an emergency, so concerned about slippery slope)
• Dispo: Squatters out.
United States v. Schoon 9th Cir. 1992 p807
• Protest in IRS office against US involvement in El Salvador.
• Hold: To invoke necessity you need:
1. Faced w/ choice of evils and chose lesser
2. Acted to prevent imminent harm
3. Reasonably anticipated direct causal relationship between their action and harm to be averted.
4. No legal alternatives to violating the law.
• The lack of just one element defeats necessity.
• Indirect civil disobedience: violating a law that isn’t direct object of the protest.
• Direct civil disobedience: violating a law that’s the direct object of protest i.e. lunch counter sit-ins.
• No necessity defense will ever be given for indirect civil disobedience.
Commonwealth v. Leno MA 1993 p802
• operated needle exchange program.
• MA prohibits distribution of hypodermics without a prescription.
• Holding: No necessity. ’s didn’t show the danger they sought to avoid was clear and imminent.
Commonwealth v. Hutchins MA 1991 p802
• grew marijuana. Claimed necessity to use as treatment for progressive systemic sclerosis.
• Holding: Alleviation of medical symptoms doesn’t clearly outweigh harm to the public no necessity defense.
B. Excuse
Don’t need to choose the lesser evil.
1) Durress – volitionally deficient action
- excused based on reasonableness, given the circumstances
2) Insanity – Irresponsible Action
- actor is not a responsible moral agent
3) Involuntary Action – see outline for “act requirement” of crime
1. Duress
• Common law: the defense of duress is recognized only when the alleged coercion involved a use or threat of harm which is present, imminent, and pending and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. *some jurisdictions more narrow: death only;
• MPC 2.09 broadens “threat or unlawful force” against self or another that a person of reasonable firmness in his situation would be unable to resist.
• Prior to MPC, there was no duress for murder. Still majority rule, although MPC would allow it.
• MPC § 2.09 – no imminence requirement.
• Most litigated issue in duress cases is the “imminence” of the threat.
• See Batter women’s syndrome
State v. Toscano NJ 1977
• Insurance fraud scam. Chiropractor argued duress.
• owed $ to other perps for gambling debts. Feared for his & his wife’s bodily safety.
• received no compensation for his part in the scheme, not even forgiveness of his debts.
• Moved and changed his phone #.
• Holding: Appellate reverses, using MPC instead of common law. ∆ under duress defined as “threat of unlawful force that reasonable person would be unable to resist” (for crimes other than murder)
• Common law application of duress – imminent threat & well-grounded threat (∆ was not under duress according to common law def)
United States v. Fleming –court martial – p843 (not imminent enough to be duress)
• POW, after abuse and interrogation, helps make anti-US propaganda.
• Threatened with death march or the hole, but punishment never started.
• Dispo: conviction upheld – threat wasn’t imminent enough because you were merely threatened.
2. Excuse Based on Mental Irresponsibility: The Insanity Defense
• Broad – Mental illness (medical, not legal term)
• Narrow:
• Insanity: legal term referring to mental state at time of commission of offense that precludes capability.
• Incompetence: mental state at time of legal proceeding.
• Possible verdicts of insanity defense cases: guilty, not guilty, not guilty by reason of insanity, guilt but mentally ill (new – go to prison but must receive treatment)
Three main approaches:
1. M’Naghten (Cognitive test):
o Defendant did not know the nature of quality of the act OR
o Defendant did not know his conduct was wrong
o Burden of proof on the defense
2. M’Naghten + “irresistible impulse” aka Volitional Test
o ‘Affective knowledge’ designates awareness of prohibition without willful incorporation into one’s behavior as prohibition or imperative
3. Substantial capacity (MPC) (softer burden):
o Excluse culpability if actor:
MPC Prong 1 (affective): lacks substantial capacity to appreciate wrongfulness of conduct OR
MPC Prong 2 (volitional) conform conduct to the law (but does realize)
o Requires only substantial, rather than totoal impairment of cognitive or volitional faculties
Whether or not something is a “mental disease or defect” can be an issue
What about “as a result?” We say that the defect must have caused a lack of “substantial capacity”
MPC §4.01 – Mental Disease or Defect Excluding Responsibility
• Not responsible for criminal conduct if at time of such conduct he lacks substantial capacity either to appreciate the criminality of his conduct (cognitive) or conform his conduct to requirements of law (volitional).
Federal statute reflects the tenor of the times. It:
o Puts the burden on the defendant as an affirmative defense
o Requires severe mental disease or defect
o Eliminates “substantial capacity” notion, saying they must be unable
o Eliminates the generalize volitional prong (uses pure M’Naghten rule)
Burden of Proof: All jurisdictions create a presumption of legal sanity at the trial. American jurisdictions differ on two issues:
1) Production: how much evidence need be presented before the effect of the presumption disappears and the question of insanity becomes an issue that must be established by the evidence.
1. Some states require “some evidence,” while others require more, usually that the evidence raise a reasonable doubt about the sanity of the accused.
2) Persuasion: When the issue must be established by the evidence, who bears the burden of persuasion, and how is that burden defined?
2. About a dozen states require the prosecution to prove the sanity of the defendant beyond a reasonable doubt once the issue is established by the evidence. The remaining jurisdictions place the burden on the defense. Federal courts require the defendant to prove the defense of insanity by clear and convincing evidence.
• No execution of the insane: Ford v. Wainright US 1986 – 8th amendment
• No backdoor confinement: Jones v. United States 1983 p870 – SCOTUS said can only be held for 50 days then requires hearing, where need to show if 1) mentally ill, 2) danger to self and others
• Civil Commitment – not punishment for past act, but detention to prevent risk of future harm. Lasts indefinitely, although there’s usually supposed to be periodic review.
• Need “clear and convincing evidence” to prove necessity of civil commitment. Addington.
• Fact that there was a finding at trial that they were insane, then it makes sense to put burden on at a release hearing to prove he/she is now sane.
• No need to inform jurors if acquit: Shannon v. US 1994 – many states do inform juries about civil commitment.
McNaghten Rule Applied
M’Naghten’s case 1843 M’Naghten test: does ∆ know the action is wrong?
• Assassination attempt on Prime Minister that ended up killing a Parliament secretary.
• found not guilty by reason of insanity.
• Rule: ∆ has to show at time of the crime he didn’t know either: 1) nature and quality of act (delusional e.g. squeezing lemons not person) 2) action was wrong (e.g. God told him to)
• Caused public stir new instructions for juries: presumed to be sane until proved to the contrary.
• Q isn’t “did know it was illegal” but rather “did know his action was wrong”
MPC (Minority) Rule
State v. Green TN 1982 p864
• History of voices from 7 yrs. Old on had received treatment several times.
• Shot a police officer with his own gun. Had warned the FBI beforehand.
• At trial, all mental health experts who worked with him agreed he was insane at time of offense.
• Police officers said he seemed “normal” jury convicts for murder.
• Holding: given nature of evidence of insanity, burden of proof is on state to establish sanity, and ∆ is insane as a matter of law, so no issue for jury.
• Appellate court eventually reversed.
Blake v. United States 5th Cir 1969
• Bank robbery. History of hospitalizations. Not a planned robbery, spontaneous.
• Holding: Reversed conviction b/c court used Davis standard instead of broader MPC standard.
• Davis standard: incapable of distinguishing right from wrong. Will so completely destroyed that actions are beyond his control.
• Cf. MPC: lacks substantial capacity to appreciate criminality or conform his conduct to requirements of law.
• fails insanity under Davis, but might be insane under MPC (for the jury).
United States v. Lyons 5th 1984
• got hooked on prescription narcotics began procuring them illegally.
• Experts testified he was psychologically and physiologically addicted lacked substantial capacity to conform conduct to requirements of the law.
• Holding: Reverses conviction. Evidence of brain damage should have gone to jury as evidence of cognitional prong. Court withdraws recognition of volitional prong in Blake: eliminates “lacks capacity to conform his conduct to requirements of law” prong.
• Concern of fraud, creating doubts in jurors.
• Dissent: difference between finding a fact and convicting. Concern about overuse of insanity defense is overblown.
Yates v. State 2005 p864
• She drowned her 5 children to save them from Satan.
• Multiple hospitalizations in the past. All experts agreed on her insanity.
• Jury convicted on capital murder.
• Appellate court reversed found not guilty by insanity on retrial.
Issues of intersection of law and science: e.g. mind-brain problem, assumptions about free will, different notions of moral agency, category vs. degree, purpose of institutions, etc
John Hinckley shoots at Reagan. Secret Service agent shoots at Hinckley. Neither shooter is convicted of anything: Hinckley because he’s insane, Secret Service agent because it’s in his line of duty.
• Justifications are conduct rules how we should act.
• Defense of others and Necessity
• Excuses are decision rules why a particular issue may not be blameworthy.
A. Justification
(1) Defense of others and (2) Necessity (choice of evils)
1. Defense of Self and Others
Common Law Rule: (from US v. Peterson) for self-defense the circumstances must be:
• actual or apparent threat
• threat is unlawful and immediate/imminent
• defender believed he was in peril of death or serious bodily harm (def MPC 3.11) (reasonable belief)
• response is necessary (proportional) to save him (reasonable response)
• last two must be reasonable given the circumstances (MPC is subjective, NY test is objective)
MPC 3.04: Use of force is justified when actor believes force is immediately necessary to protect self against unlawful force (subject to 3.04, 3.09)
• 3.04(b) deadly force is not allowed unless the actor (reasonably) believes there is a threat of death, seriously bodily injury, rape, or kidnapping
Culpability Complications (If mistake, then imperfect self-defense):
• What if an unreasonable belief as to any of the material elements (necessary, immediate, etc)? MPC §3.09 allows prosecution for manslaughter or negligent homicide if has been reckless or negligent in reaching a mistaken self-defense belief (modifies the subjective belief rule in 3.04)
• E.g. If Goetz was reckless or negligent in concluding the youths were a threat, then no self-defense if he had committed reckless/negligent homicide (e.g. bystander). Since he committed attempted (purposeful) homicide, 3.09 does not apply. (But if committed homicide, prosecutor could charge for homicide with reckless or negligent culpability instead of murder
• imported as culpability for the homicide - so reckless mistake of necessity becomes manslaughter; negligence becomes negligent homicide
Rules/Limits
• No longer in danger once attacker is disarmed, so must stop assault
• Must use proportional force (can’t respond with deadly force/s.b.i (i.e. death or impairment §210.0) when in a headlock, but can when rape, kidnapping, etc
• No defense if actor provoked the force in the same encounter
• If you provoke w/o deadly force:
• Under Peterson, not allowed to respond with deadly force even if other party does
• Under MPC 3.04, allowed to respond with deadly force (but will be convicted of assault)
• MPC § 3.04 retreat is required before deadly force (only, not any fight) may be used except at ’s home or office, but only where defendant “knows he may retreat in complete safety”.
• MPC §3.04 assesses if actor believed use of force was “immediately necessary”.
• Third party interveners take place of the person they’re helping (only defense if person you’re helping has a defense). MPC has a defense for “reasonable” belief that defensive force was necessary, fn p771
Notes p774:
1. Limits on use of deadly force.
2. Can one claim self-defense if he was unaware of the danger?
3. Risk of injury to others.
4. Burden of proof.
People v. Goetz NY 1986 p739
• indicted for attempted murder after shooting 4 youth when they asked him for $5 on the subway.
• NY self-defense statute allows for reasonable force when necessity to use force, b/c facing an imminent threat of deadly force, robbery rape, or kidnapping.
• Holding: Test is objective, not whether “defendant reasonably believes”.
• Objective standard, NY didn’t adopt the MPC formulation. **Under MPC it’s subjective (subject to 3.09: no reckless/negligently est beliefs).
• Reasonableness may factor in ’s situation (i.e. had been mugged in the past).
• Postscript: Jury convicted Goetz of carrying unlicensed handgun, acquitted him on other counts. In civil suit, the youths got $43 million in damages.
State v. Abbott NJ 1961 p777
• Neighbors who share a joint driveway. Fistfight breaks out. Someone brings out a hatchet & a carving knife. People injured in the scuffle.
• Must one who is neither aggressor nor party to the combat retreat?
• Holding: (1) issue of retreat arises only if resorts to deadly force.
• You can stand your ground in a fistfight.
• (2) Is the retreat safe? court takes into account all the circumstances.
• Reversed conviction of assault b/c of jury instruction mis-defining rules
Defender/First Aggressor Case
United States v. Peterson DC 1973 p781
• Decedent was taking windshield wipers off Peterson’s car at Peterson’s house.
• Verbal argument, goes inside and gets his gun.
• says, “If you come in my yard I’ll shoot”. Decedent gets a tire iron and starts walking to . gives final warning, then shoots decedent.
• Holding: No self-defense to self generated necessity to kill. Peterson should’ve just stayed in his house. Going back out and pointing the gun at decedent is unnecessarily escalating the conflict. Convicted of manslaughter
Minority of states hold that if initial aggressor, after using only nonlethal force, is met by excessive, life-threatening force, he can regain his right to self-defense.
Stand your Ground laws:
15 states have enacted law that permit defender to meet force with deadly force, even when retreat is possible. NRA says it empowers the victim.
State v. Smiley FL 2006
• cab driver could have driven away but chose not to and shot passenger. Convicted of 1st degree murder but FL stand your ground laws have likely changed the result.
In jurisdictions where retreat before deadly force is required, there is always an exception in your own castle.
People v. Tomlins 1914
• Cardozo says flight is for sanctuary. And if home isn’t sanctuary, then what is? So you never have to retreat from your home.
But there’s dispute over need to retreat when one occupant kills a co-occupant.
People v. Tomkins
• Cardozo held father being threatened by his son could kill the son rather than retreat.
• MPC shares this view.
• Minnesota has recently switched to this view – State v. Glowacki.
• 2005 Florida Stand Your Ground law does not require defender to believe that suspected intruder is about to commit any other crime. Applies to home and car.
• Colorado allows use of deadly force if occupant believes intruder might use any physical force, no matter how slight, against any occupant. P790
Mistake and Self-Defense
All or nothing approach: most courts have adopted rule that defendant who killed in the mistaken belief that he was the victim of a deadly attack would entirely lose the defense if the mistake was unreasonable
Imperfect self-defense: an unreasonable but honestly held belief would reduce the killing to manslaughter
MPC approach: 3.04(1) says use of force for self-protection is justifiable when the actor believes that such force is immediately necessary; then 3.09(2) says when actor believes this but is mistaken, culpability as to that mistake (recklessness: aware of substantial risk there is no threat; negligence: should have been aware) is imported as culpability for the homicide - so reckless mistake of necessity becomes manslaughter; negligence becomes negligent homicide
• What if an unreasonable belief as to any of the material elements (necessary, immediate, etc)? MPC §3.09 allows prosecution for manslaughter or negligent homicide if has been reckless or negligent in reaching a mistaken self-defense belief (modifies the subjective belief rule in 3.04)
• E.g. If Goetz was reckless or negligent in concluding the youths were a threat, then no self-defense if he had committed reckless/negligent homicide (e.g. bystander). Since he committed attempted (purposeful) homicide, 3.09 does not apply. (But if committed homicide, prosecutor could charge for homicide with reckless or negligent culpability instead of murder
Defender / Aggressor
• Peterson Doctrine
o In most states initial aggressor forfeits his right to self-defense; minority of states allow aggressor to regain right if met with a life-threatening response, provided there is no opportunity to flee.
US v. Peterson (F.2d 1973): Danger had already passed when defendant retrieved gun from his home; no self-defense for those who incite fatal argument or promote necessity of taking life.
• Under MPC §3.04 initial aggressor is responsible, with exception for especially disproportionate response justifying use of deadly force but not excusing the provocative assault.
o When initial defender exceeds the bounds of force necessary to repel an attack, he uses unlawful force justifying the response of the initial attacker.
o §3.04(2)(b)(i) does not deprive initial attacker of justification on the ground of the initial attack unless he entered the encounter with the purpose of causing death or serious harm
• Scenarios
o A (moderate force) --> B (responds with moderate force)
No self defense for A
o A (moderate force) --> B (responds with deadly force)
Use of deadly force justified by A, though he is still liable for initial assault
o A (deadly force) --> B (responds with deadly force)
Use of deadly force not justified by A, since he incited necessity of taking life
Bystanders & Self-Defense
Common Law Rule: People v. Adams: reversing D’s manslaughter conviction of bystander when he, acting in self-defense, shot and killed assailant and bullet passed through his body, striking her
Commonwealth v. Fowlin: dismissing aggravated assault and reckless endangerment charges of D who was blinded with pepper spray and shot several times in direction of attackers while at club with 200 other people present - if valid self defense, cannot be deemed reckless
MPC Rule: Different approach in MPC 3.09: allows prosecution for manslaughter or negligent homicide if the defendant has been reckless or negligent, respectively, in reaching a mistaken belief
Burden of Proof
Most states put burden of production on to show evidence of self-defense, then burden of persuasion falls on π to prove beyond a reasonable doubt that it wasn’t self-defense.
-But see Martin v. Ohio, which requires to prove self-defense by preponderance of evidence; upheld as constitutional by SCOTUS because self-defense wasn’t an element of the crime charged.
Battered Women
Defense attorney: Learned helplessness: feel they can’t leave, so threat seems inevitable
Prosecution: threat never seems imminent, immediate---they can leave. Killing isn’t helpless. Why do only some murder?
• Imminence is the biggest hurdle!
State v. Kelly NJ 1984 (reckless manslaughter): Battered women’s syndrome recognized
• Kelly stabbed husband with scissors and he died.
• Trial court said expert testimony about battered women syndrome was inadmissible for self-defense issue. Disputed facts, but he had beat her over the course of several years.
• Self defense: necessary, immediate (broader than imminent), threat of death/serious bodily harm
• Holding: Expert can testify about ’s failure to leave her husband over course of the marriage. But not about the reasonableness of the perceived threat on the day of the killing.
• Standard is that of a reasonable person, not a reasonable battered woman.
State v. Norman NC 1989 (no defense, voluntary manslaughter): Battered women’s syndrome not recognized, instead an objective standard was used
• Husband was abusive for 25 years.
• Day before killing, beat her badly, police & paramedics came, but he wasn’t arrested. Later beat her again. She removed kids from the house, returned with a pistol. Gun jammed, she fixed it and shot him 3 times, “to make sure”.
• Holding: In NC, acquittal only be “perfect self-defense”. There must be (1) reasonable belief of imminent harm in (2) person with ordinary firmness of mind.
• All evidence showed had ample time to resort to other means of preventing abuse danger of bodily harm wasn’t imminent.
• Subjective belief that husband will inevitably kill her doesnt equal imminent.
• A killing by a woman suffering from “battered wife syndrome” cannot be done in self-defense unless death or serious bodily harm is imminent.
Meltzer likes: reasonably necessary rule instead of immediate or imminent, then let jury decide.
Other Imminent Danger cases:
State v. Schroeder: inmate stabs sleeping roommate who credibly threatened him; court refuses
self-defense instruction
Ha v. State: inevitable violence is not a substitute for imminence; no self-defense
Jahnke v. State: no self defense for premeditated killing of abusive parent; defense would be
“antithetical to the mores of modern civilized society” and allowing abusive conduct to justify
killing “would amount to a leap into the abyss of anarchy”
2. Necessity (Choice of Evils)
Common Law Limits:
• Harm to be avoided is grave
• No prior fault of ∆ in creating the harm to be avoided (no provoking)
• Emergency—choice arose suddenly
• Harm is imminent
• Balance of evils: benefit clearly outweighs harms (only one to require this—not self-d or duress)
• ∆ belief that action is necessity was not only reasonable but correct
• Not a defense to homicide
Regina v. Dudley and Stephens 1883 p73
• Shipwreck cannibals. Victim not consulted. Stephens and Dudley complicit, but Brooks still ate him.
• If they hadn’t eaten him, they probably wouldn’t have survived.
• Holding: Rejected necessity as a defense. Never a defense of killing an innocent. No absolute or unqualified duty to preserve one’s own life.
• Dispo: murder.
United States v. Holmes 1842 p810
• Shipwreck, people on lifeboat.
• First mate ordered all male passengers whose wives were not in the boat to be thrown overboard.
• 18 people jettisoned before lifeboat arrived.
• Holding: Normally, neither is bound to save another’s life by sacrificing his own, nor would either commit a crime in saving his own life for the only means of safety. But different with sailor / passenger special relationship.
• Dispo: manslaughter.
State v. Unger IL 1977 p798 (choice: threat of assault vs. prison break)
• in jail for theft. Threatened and sexually assaulted by other inmates escapes from jail.
• Issue: Should jury be instructed to disregard reasons for escape / compulsion & necessity?
• Holding: Defense of necessity is correct jury instruction. Not deprived of free will, but forced to choose between two admitted evils. A consideration that didn’t report to authorities, but just one of several facts. Remanded for new trial.
• ** but subsequently United States v. Bailey: held contrary to Unger that necessity defense requires that D make a bona fide effort to surrender as soon as the duress or necessity has lost its coercive effect.
• Justification, not excuse
Borough of Southwark v. Williams p801 (Note: civil case)
• Homeless people start squatting in empty houses. Raised necessity defense.
• Holding: Defense of necessity on in great and imminent danger in order to preserve life. Doctrine allowing encroachment on private property to preserve life must be carefully circumscribed. (not an emergency, so concerned about slippery slope)
• Dispo: Squatters out.
United States v. Schoon 9th Cir. 1992 p807
• Protest in IRS office against US involvement in El Salvador.
• Hold: To invoke necessity you need:
1. Faced w/ choice of evils and chose lesser
2. Acted to prevent imminent harm
3. Reasonably anticipated direct causal relationship between their action and harm to be averted.
4. No legal alternatives to violating the law.
• The lack of just one element defeats necessity.
• Indirect civil disobedience: violating a law that isn’t direct object of the protest.
• Direct civil disobedience: violating a law that’s the direct object of protest i.e. lunch counter sit-ins.
• No necessity defense will ever be given for indirect civil disobedience.
Commonwealth v. Leno MA 1993 p802
• operated needle exchange program.
• MA prohibits distribution of hypodermics without a prescription.
• Holding: No necessity. ’s didn’t show the danger they sought to avoid was clear and imminent.
Commonwealth v. Hutchins MA 1991 p802
• grew marijuana. Claimed necessity to use as treatment for progressive systemic sclerosis.
• Holding: Alleviation of medical symptoms doesn’t clearly outweigh harm to the public no necessity defense.
B. Excuse
Don’t need to choose the lesser evil.
1) Durress – volitionally deficient action
- excused based on reasonableness, given the circumstances
2) Insanity – Irresponsible Action
- actor is not a responsible moral agent
3) Involuntary Action – see outline for “act requirement” of crime
1. Duress
• Common law: the defense of duress is recognized only when the alleged coercion involved a use or threat of harm which is present, imminent, and pending and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. *some jurisdictions more narrow: death only;
• MPC 2.09 broadens “threat or unlawful force” against self or another that a person of reasonable firmness in his situation would be unable to resist.
• Prior to MPC, there was no duress for murder. Still majority rule, although MPC would allow it.
• MPC § 2.09 – no imminence requirement.
• Most litigated issue in duress cases is the “imminence” of the threat.
• See Batter women’s syndrome
State v. Toscano NJ 1977
• Insurance fraud scam. Chiropractor argued duress.
• owed $ to other perps for gambling debts. Feared for his & his wife’s bodily safety.
• received no compensation for his part in the scheme, not even forgiveness of his debts.
• Moved and changed his phone #.
• Holding: Appellate reverses, using MPC instead of common law. ∆ under duress defined as “threat of unlawful force that reasonable person would be unable to resist” (for crimes other than murder)
• Common law application of duress – imminent threat & well-grounded threat (∆ was not under duress according to common law def)
United States v. Fleming –court martial – p843 (not imminent enough to be duress)
• POW, after abuse and interrogation, helps make anti-US propaganda.
• Threatened with death march or the hole, but punishment never started.
• Dispo: conviction upheld – threat wasn’t imminent enough because you were merely threatened.
2. Excuse Based on Mental Irresponsibility: The Insanity Defense
• Broad – Mental illness (medical, not legal term)
• Narrow:
• Insanity: legal term referring to mental state at time of commission of offense that precludes capability.
• Incompetence: mental state at time of legal proceeding.
• Possible verdicts of insanity defense cases: guilty, not guilty, not guilty by reason of insanity, guilt but mentally ill (new – go to prison but must receive treatment)
Three main approaches:
1. M’Naghten (Cognitive test):
o Defendant did not know the nature of quality of the act OR
o Defendant did not know his conduct was wrong
o Burden of proof on the defense
2. M’Naghten + “irresistible impulse” aka Volitional Test
o ‘Affective knowledge’ designates awareness of prohibition without willful incorporation into one’s behavior as prohibition or imperative
3. Substantial capacity (MPC) (softer burden):
o Excluse culpability if actor:
MPC Prong 1 (affective): lacks substantial capacity to appreciate wrongfulness of conduct OR
MPC Prong 2 (volitional) conform conduct to the law (but does realize)
o Requires only substantial, rather than totoal impairment of cognitive or volitional faculties
Whether or not something is a “mental disease or defect” can be an issue
What about “as a result?” We say that the defect must have caused a lack of “substantial capacity”
MPC §4.01 – Mental Disease or Defect Excluding Responsibility
• Not responsible for criminal conduct if at time of such conduct he lacks substantial capacity either to appreciate the criminality of his conduct (cognitive) or conform his conduct to requirements of law (volitional).
Federal statute reflects the tenor of the times. It:
o Puts the burden on the defendant as an affirmative defense
o Requires severe mental disease or defect
o Eliminates “substantial capacity” notion, saying they must be unable
o Eliminates the generalize volitional prong (uses pure M’Naghten rule)
Burden of Proof: All jurisdictions create a presumption of legal sanity at the trial. American jurisdictions differ on two issues:
1) Production: how much evidence need be presented before the effect of the presumption disappears and the question of insanity becomes an issue that must be established by the evidence.
1. Some states require “some evidence,” while others require more, usually that the evidence raise a reasonable doubt about the sanity of the accused.
2) Persuasion: When the issue must be established by the evidence, who bears the burden of persuasion, and how is that burden defined?
2. About a dozen states require the prosecution to prove the sanity of the defendant beyond a reasonable doubt once the issue is established by the evidence. The remaining jurisdictions place the burden on the defense. Federal courts require the defendant to prove the defense of insanity by clear and convincing evidence.
• No execution of the insane: Ford v. Wainright US 1986 – 8th amendment
• No backdoor confinement: Jones v. United States 1983 p870 – SCOTUS said can only be held for 50 days then requires hearing, where need to show if 1) mentally ill, 2) danger to self and others
• Civil Commitment – not punishment for past act, but detention to prevent risk of future harm. Lasts indefinitely, although there’s usually supposed to be periodic review.
• Need “clear and convincing evidence” to prove necessity of civil commitment. Addington.
• Fact that there was a finding at trial that they were insane, then it makes sense to put burden on at a release hearing to prove he/she is now sane.
• No need to inform jurors if acquit: Shannon v. US 1994 – many states do inform juries about civil commitment.
McNaghten Rule Applied
M’Naghten’s case 1843 M’Naghten test: does ∆ know the action is wrong?
• Assassination attempt on Prime Minister that ended up killing a Parliament secretary.
• found not guilty by reason of insanity.
• Rule: ∆ has to show at time of the crime he didn’t know either: 1) nature and quality of act (delusional e.g. squeezing lemons not person) 2) action was wrong (e.g. God told him to)
• Caused public stir new instructions for juries: presumed to be sane until proved to the contrary.
• Q isn’t “did know it was illegal” but rather “did know his action was wrong”
MPC (Minority) Rule
State v. Green TN 1982 p864
• History of voices from 7 yrs. Old on had received treatment several times.
• Shot a police officer with his own gun. Had warned the FBI beforehand.
• At trial, all mental health experts who worked with him agreed he was insane at time of offense.
• Police officers said he seemed “normal” jury convicts for murder.
• Holding: given nature of evidence of insanity, burden of proof is on state to establish sanity, and ∆ is insane as a matter of law, so no issue for jury.
• Appellate court eventually reversed.
Blake v. United States 5th Cir 1969
• Bank robbery. History of hospitalizations. Not a planned robbery, spontaneous.
• Holding: Reversed conviction b/c court used Davis standard instead of broader MPC standard.
• Davis standard: incapable of distinguishing right from wrong. Will so completely destroyed that actions are beyond his control.
• Cf. MPC: lacks substantial capacity to appreciate criminality or conform his conduct to requirements of law.
• fails insanity under Davis, but might be insane under MPC (for the jury).
United States v. Lyons 5th 1984
• got hooked on prescription narcotics began procuring them illegally.
• Experts testified he was psychologically and physiologically addicted lacked substantial capacity to conform conduct to requirements of the law.
• Holding: Reverses conviction. Evidence of brain damage should have gone to jury as evidence of cognitional prong. Court withdraws recognition of volitional prong in Blake: eliminates “lacks capacity to conform his conduct to requirements of law” prong.
• Concern of fraud, creating doubts in jurors.
• Dissent: difference between finding a fact and convicting. Concern about overuse of insanity defense is overblown.
Yates v. State 2005 p864
• She drowned her 5 children to save them from Satan.
• Multiple hospitalizations in the past. All experts agreed on her insanity.
• Jury convicted on capital murder.
• Appellate court reversed found not guilty by insanity on retrial.
Issues of intersection of law and science: e.g. mind-brain problem, assumptions about free will, different notions of moral agency, category vs. degree, purpose of institutions, etc
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