Chapter 6

Affirmative Defenses Part 2

Excuse defenses Defendant admits committing the act, and even that the act was wrong and the ensuing harm regrettable, but claims that his conduct should be excused because extenuating circumstances prevented him from acting by his own volition. Insanity, duress

Deadly Force

Force used must be proportional to threatened harm. Deadly force is unjustified in self-defense unless the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.

Defense of Others

In most states the right to use force parallels the third party's right of self-defense. Actions must be reasonably perceived to be necessary and be in proportion to the threatened harm. Alter ego rule In some jurisdictions, person has right to use force if the third person could have legally used force in defense. If wrong, defense not viable. Model Penal Code contains a four-part test.

Involuntary Intoxication

Involuntary intoxication or drugged condition can be a defense to a criminal charge if: The jury or judge believes the defendant's story about the intoxication being involuntary The defense is supported by credible evidence that the defendant did not voluntarily take the drug or intoxicant and instead was tricked or forced into taking the substance The defendant became so intoxicated or drugged that he or she was not able to mentally form the specific intent necessary for the crime charged but was physically able to commit the crime

Use of Force in Resisting Arrest

The common law allowed the use of force to resist unlawful arrest. A number of states now prohibit the use of force in resisting arrest. Usually applies only when defendant knows or should know that the person making the arrest is a police officer.

Retreat

Do not need to retreat before using non-deadly force in self-defense. Split among states on duty to retreat before using deadly force. Most do not require retreat. Castle doctrine: No duty to retreat before using force if in home

Self-Defense

Essential elements: The defendant is the victim of an unlawful attack. The defendant did not provoke the attack. The defendant actually and reasonably believes that he/she is in imminent danger of bodily harm. The defendant uses only the amount of force needed to repel the attack.

Necessity (Choice of Evils)

Choosing to commit a crime to prevent a greater harm. Necessity is also referred to as "choice of evils." Several requirements: The actor must be "faced with a clear and imminent danger." The actor must expect, as a reasonable person, that his action will be effective in abating the danger he seeks to avoid. The actor may not successfully claim necessity if there is an effective legal alternative for averting the harm. The defense does not apply unless the harm that the actor will cause by violating the law is less serious than the harm he seeks to avoid. The actor must come to the situation with clean hands.

Duress

Common law elements A reasonable belief or fear of a present, imminent, and impending threat of death or serious injury to one's self or another (sometimes limited to a close relative) from which there was no reasonable escape or alternative course of action. The danger or threat was not brought about by the defendant's own conduct. Available as a defense because an act done under duress is not voluntary. Must not have a reasonable alternative. Threat of harm must be imminent. Fear of harm must be reasonable. Ability to withstand threats judged under reasonable firmness standard. A person of reasonable firmness in actor's position would have been unable to resist the coercion. Does not apply to homicide. Specifics of the defense vary. Some states allow defense only for minor offenses. Some states require threats to kill; some allow threats of bodily harm. No states allow threats only to property.

Justification Versus Excuse Defenses

Justification defense Focuses on the act and seeks to show that the act was not wrongful under the circumstances. Under the circumstances it is socially acceptable or serves some social benefit. Excuse defense Focuses on the actor and considers whether he is morally culpable for his wrongful conduct. (Defendant may not have done the right thing, but we don't blame him because he lacked "free choice.") Actor not blameworthy for an act he could not control.

Justification defenses

Justification defenses Defendant admits committing the act, but claims that the actions were appropriate or justified under the circumstances. Defendant essentially says, "Yes I did it, and I would do it again if placed in the same situation." Self-defense, defense of third person, necessity.

Mistake or Ignorance of Fact

Not knowing the law (ignorance) is not an excuse for breaking the law; however, mistake of fact might be: Exceptions always exists (e.g. requirement of notice) Example: Ignorance of statute that makes failure to place infants or children in car seat a crime is not a valid defense Mistake of fact would be, e.g., if a man mistakes his coat for someone else's and grabs the wrong one as he is leaving a restaurant (police find the lookalike coat still there) Mistake of fact, however, is not a defense for strict liability crime Example: Having sex with underage child requires no knowledge of age, so there is no mistake of fact defense based on mistaken belief of child's age

Model Penal Code 3.05

Person may use force to protect another: If he would be justified in using force to protect himself if facts were as he believed them to be; If the person whom he seeks to protect would be justified in using force to protect himself; If the actor believes intervention is necessary to protect the third person; and 4. If the third person would be required to retreat under the rules of self-defense, the actor must try to facilitate such retreat by the third person before using deadly force.

Defense of Home and Property

Person may use reasonable force to protect property. Generally, a person cannot use deadly force simply to protect her property against unlawful interference, even if there is no other way to prevent the threatened harm. Many states now allow use of deadly force to defend against an intruder within a home if reasonable belief the intruder will inflict injury. Must be a reasonable belief of threatened harm. Belief must be based on the circumstances. Automatically set trap or spring guns are illegal. Although the right to use deadly force to protect property and home has expanded, it still must be reasonable based on the circumstances encountered by the actor.

Entrapment

Subjective Test: Government conduct induced the commission of the crime, which the defendant was not predisposed to commit. If a defendant was predisposed to commit the crime, entrapment defense will not be available. Emphasis toward the defendant's character and criminal history rather than on the conduct of the police and. Defendants with prior criminal history are argued to be predisposed to commit further crimes. Objective Test: Would the average person be induced to commit a criminal act by law enforcement encouragement? Focuses on police conduct and not the defendant. Ignores defendant's criminal history and predisposition.

Reasonableness of Belief

The belief in the need to act in self-defense must be reasonable. Doesn't have to be correct, just act reasonably. Did the defendant act reasonably given the circumstances? Consider location, defendant's background, size differences, etc.

Immunity

The three main types of immunity defenses are diplomatic, legislative, and witness: Diplomatic immunity is an international agreement regarding government officials stationed in a foreign country. May be waived by the diplomat's home country. In the case of serious crimes, the U.S. government frequently requests that waiver Legislative immunity is sometimes granted to representatives, senators, and state legislators to a limited, temporary degree while their legislative bodies are in session. Charges, however, could be held until the legislative body adjourns. State legislators enjoy no immunity from prosecution for federal crimes

Public Duty

Under the common law, a police officer or private person is justified in using non-deadly force upon another if he or she reasonably believes that: Such other person is committing or has committed a felony, or a misdemeanor amounting to a breach of the peace; and The force used is necessary to prevent the commission of the offense, or to effectuate an arrest. Use of deadly force was limited by Supreme Court in Tennessee v. Garner May use deadly force only if: He or she "has probable cause to believe that the suspect poses a significant threat of death or serious bodily physical injury to the officer or others; and Such force is necessary to make the arrest or prevent escape.

Intoxication

Voluntary Intoxication or drugged condition is typically not a valid defense. Crimes that require only a general intent (should have known better) do not permit an intoxication defense Some states have abolished intoxication as a defense in any case (e.g. Montana). Some state statutes allow intoxication to mitigate the charge IF defendant can prove intoxication level eliminated ability to have specific intent: Example: Intoxication can negate the required specific intent to kill for a first-degree murder conviction, but not a conviction for manslaughter, or in some states, second-degree murder

Affirmative Defenses

What is an affirmative defense? Defendant admits the elements of the crime, but offers either an excuse or justification that negates criminal responsibility. Before a jury may consider an affirmative defense, defendant must produce sufficient evidence to put the item in issue (burden of production). Once the defendant meets this burden, the prosecution must prove beyond a reasonable doubt that the defendant's actions were not justified or excused under the law.

Witness Immunity

Witness Immunity: prosecutors may provide witnesses with immunity in exchange for testimony. Transactional Immunity: if granted, the witness cannot be prosecuted for any offense related to the subject matter of his testimony Congress, concerned that total immunity hampered efforts to combat crime amended protection, implemented use immunity Use Immunity allows that the statements made by the witness may not be used in subsequent prosecutions, but the witness can be prosecuted for the crimes about which they testified if other evidence is used to convict them