Criminal Law CJ 220 Chapter 5

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Criminal Law CJ 220Chapter 5

• Defenses to Criminal Liability Justifications
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Defenses Generally

• Alibi D in a different place, and could not
  commit the crime
• Justifications what D did was correct under
  the circumstances
• Excuses D did it, but was not responsible

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Affirmative defenses burden of proof

• Burden of production
• D must produce some evidence supporting the
  defense

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Affirmative defenses burden of proof

• Burden of persuasion most jurisdictions require
  that defendant prove the defense by a
  preponderance of the evidence.
• This means the greater weight of the evidence, or
  more likely so than not.
• Once D meets this burden of proof, some
  jurisdictions shift the burden to the prosecution
  to prove beyond a reasonable doubt that the
  defense does not exist.

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Affirmative defenses burden of proof

• A perfect defense leads to acquittal.
• An imperfect defense may reduce the degree of the
  offense

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Affirmative defenses burden of proof

• Mitigating circumstances do not acquit or reduce
  the degree of the offense, but may reduce the
  severity of punishment.
• Motive may affect severity of punishment.

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Self-defense

• Use of force to prevent an attack upon ones
  self, family, or property

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Self-DefenseElements

• Necessity Reasonable belief that there is
  danger of attack that will cause death or serious
  bodily injury
• Unprovoked attack The danger is to
  non-aggressor (attack is not provoked)
• Imminent danger Danger must be imminent - now
• Reasonable force Force used to repel attack
  must be only amount necessary to repel. Force
  must not be excessive

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Initial Aggressor and Defender-Provoked Attacks

• Generally, if one provokes attack, self-defense
  is not available.
• Exception, when initial aggressor completely
  withdraws, and initial victim then mounts an
  attack on one who was the initial aggressor.

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Self-Defense

• People v. Goetz, 506 N.Y.S.2d 18, 497 N.E.2d 41
  (1986)

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Belief in Danger

• Self-defense may be used to protect self
• Also available to prevent a person from killing a
  member of your family, or any other innocent
  person.

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Belief in Danger

• May also be used to prevent serious bodily injury
• Some jurisdictions allow defense to prevent
  serious felony (rape sodomy kidnapping armed
  robbery may even include defense of home)

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Belief in Danger

• Test is what would a reasonable person do in the
  same circumstances?

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Imminent Attacks

• Self-defense applies to imminent attacks
• (imminent right now)
• Self-defense sometimes applies to present danger
• (present dangercould happen at any time, but
  not right now)

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Self Defense

• State v. Stewart, 243 Kan. 639, 763 P.2d 572
  (1988)

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Self Defense

• State v. Hundley, 693 P.2d 475 (Kans. 1985)

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Excessive Force

• The force used in self defense must only be that
  amount reasonably necessary to repel the attack.
• Deadly force may be used to repel deadly force
• Threats alone never justify deadly force

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Retreat Doctrine

• Retreat rule must retreat unless it would
  unrreasonably expose person to death or serious
  bodily harm

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Retreat Doctrine

• Stand-your-ground rule if you are not the
  initial aggressor, you do not have to retreat

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Retreat Doctrine

• Castle exception if attacked in your home, you
  can use deadly force to protect self or others,
  if the attack reasonably threatens death or
  serious bodily injury

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Self Defense

• U.S. v. Peterson, 483F.2d 1222, 157 U.S. App.D.C.
  219 (2d Cir. 1973)

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Self Defense

• State v. Quarles, 504 A.2d 473 (R.I. 1986)

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Defense of Others

• Common law self-defense included defense of
  family
• Current trend to expand this to include others

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Defense of Home and Property

• Defense of home goes to common law.
• Deadly force permitted to defend home and
  property
• Sanctity of home not even the King of England
  may enter the poorest home.
• Blackstone deadly force may be used to stop
  entry at night and may be used in day to
  prevent robbery.

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Defense of Home and Property

• Colorado "Make My Day" law
• Any occupant of dwelling is justified in using
  any degree of force (including deadly force) when
  the other person has made unlawful entry into the
  dwelling and
• Other person has committed crime in the dwelling
  or
• Is committing or intends to commit any crime and
• Occupant reasonably believes the other person
  might use any force against any occupant.
• Occupant is immune from civil and criminal
  prosecution as a result of use of force

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Defense of Home and Property

• Most statutes require entry into the home, and
  not include curtilage

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Defense of Home

• Law v. State, 21 Md.App. 13, 318 A.2d 859
  (Md.App. 1974)

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Defense of Home and Property

• People v. Guenther, 740 P.2d 971 (Colo. 1987)

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Execution of public duties

• Public officials sometime kill in line of duty.
• Executioners
• Soldiers
• Police officers
• Execution of public duties is long-recognized
  defense to homicide.
• There are limits to this defense?

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Criminal Law CJ 220Chapter 5

• Defenses to Criminal Liability Justifications
• Andrew Fulkerson, JD, PhD
• Southeast Missouri State University

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Choice of Evils

• Common law principle of necessity
• Justification when the person acts under
  necessity of compulsion or inconvenience.

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Choice of Evils

• Queen v. Dudley and Stephens

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Choice of evils-elements

• Conduct actor believes is necessary to avoid harm
  to self or others, if
• harm to be avoided is greater than the harm the
  law seeks to prevent
• law does not provide exceptions or defenses
  dealing with this situation
• does not appear to be legislative purpose in
  excluding the justification claimed

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Choice of evils-elements

• Where actor is negligent or reckless,
• Defense is not available if crime includes
  negligent or reckless behavior to establish
  culpability

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MPC Choice-of-Evils

• Identify the evils
• Rank the evils
• Choose lesser evil to avoid greater evil
• Choice of lesser evil has to be both imminent and
  necessary

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MPC Choice-of-Evils Examples

• Destroying property to prevent spreading fire
• Violating speed limit to get dying person to
  hospital
• Throwing cargo overboard to save sinking ship
• Giving prescription drugs without prescription in
  an emergency
• Breaking and entering mountain cabin to avoid
  freezing to death

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Choice of Evils

• State v. Ownbey, 165 Or.App. 132, 996 P.2d 510
  (Oregon App. 2000)

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Case

• People v. Dover, 790 P.2d 834 (Colo. 1990)

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Consent-elements

• Voluntary and knowing consent
• Person must be competent to consent
• Forgiveness after the fact is not consent

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Case

• State v. Shelley, 929 P.2d 489 (Wash. 1997)

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Cases

• State v. Hiott, 97 Wash.App. 825, 987 P.2d 135
  (Wash.App. 1999)
• State v. Brown, 143 N.J.Super. 571, 364 A.2d 27
  (1976)
• State v. Fransua, 510 P.2d 106 (N.Mex.App. 1973)