chapter 8 justifications. lippman, contemporary criminal law, second edition chapter summary...

Chapter 8Chapter 8

JustificationsJustifications

Lippman, Contemporary Criminal Law, Second Edition

Chapter SummaryChapter Summary

Affirmative Affirmative DefensesDefenses

Mitigating Mitigating CircumstancesCircumstances

Self-DefenseSelf-Defense Defense of OthersDefense of Others Defense of HomeDefense of Home

Execution of Public Execution of Public DutiesDuties

Resisting Unlawful Resisting Unlawful ArrestArrest

NecessityNecessity ConsentConsent


IntroductionIntroduction

Prosecutors must overcome the Prosecutors must overcome the presumption of innocence of the presumption of innocence of the defendant and prove guilt beyond a defendant and prove guilt beyond a reasonable doubt.reasonable doubt.

However, defendants can present However, defendants can present defenses, which justifies or excuses their defenses, which justifies or excuses their acts.acts.

When putting an affirmative defenses When putting an affirmative defenses forward, the burden of production and forward, the burden of production and persuasion are moved to the defense.persuasion are moved to the defense.


Affirmative DefensesAffirmative Defenses

Justification DefensesJustification Defenses make the case that otherwise criminal make the case that otherwise criminal

acts are approved of and encouraged by acts are approved of and encouraged by society given the circumstancessociety given the circumstances

Excuse DefensesExcuse Defenses make the case that the act does deserve make the case that the act does deserve

condemnation but the defendant should condemnation but the defendant should not be held liable due to a personal not be held liable due to a personal disabilitydisability


Affirmative Defenses at Affirmative Defenses at Common LawCommon Law

At common law, successful At common law, successful justification defenses resulted in justification defenses resulted in acquittalsacquittals

At common law, successful excuse At common law, successful excuse defenses provided the defendant the defenses provided the defendant the opportunity to request that the king opportunity to request that the king exempt them from the death penaltyexempt them from the death penalty


Theories for the Theories for the Justification DefenseJustification Defense

Moral InterestMoral Interest Superior InterestSuperior Interest Public BenefitPublic Benefit Moral Forfeiture Moral Forfeiture


Affirmative Defenses at Affirmative Defenses at Common Law, cont.Common Law, cont.

A perfect affirmative defense satisfies A perfect affirmative defense satisfies every necessary element of the every necessary element of the defense.defense.

An imperfect affirmative defense An imperfect affirmative defense satisfies only some of the necessary satisfies only some of the necessary elements.elements.

Imperfect defenses serve as Imperfect defenses serve as mitigating circumstances during mitigating circumstances during sentencing.sentencing.


Mitigating Mitigating CircumstancesCircumstances

Some evidence is not relevant for Some evidence is not relevant for affirmative defenses.affirmative defenses.

This evidence may be used, however, This evidence may be used, however, at sentencing to reduce the at sentencing to reduce the defendant’s punishment.defendant’s punishment. good-motive defensegood-motive defense

If mitigating circumstances are If mitigating circumstances are overwhelming, a defense attorney may overwhelming, a defense attorney may push for the jury to acquit anyway by push for the jury to acquit anyway by means of “jury nullification.”means of “jury nullification.”


Self-DefenseSelf-Defense

Vigilante justice is discouraged.Vigilante justice is discouraged. However, self-defense (of an However, self-defense (of an

innocent victim) is a legitimate innocent victim) is a legitimate defense.defense.


Seven Elements of Self-Seven Elements of Self-DefenseDefense

Individual most posses a reasonable belief Individual most posses a reasonable belief that force is required to defend selfthat force is required to defend self

Defender must reasonably believe that Defender must reasonably believe that force is required to prevent the imminent force is required to prevent the imminent and unlawful infliction of death or serious and unlawful infliction of death or serious bodily harmbodily harm

Force employed must not be excessiveForce employed must not be excessive Deadly force may not be used in a Deadly force may not be used in a

defender can safely and reasonably defender can safely and reasonably retreatretreat


Seven Elements of Self-Seven Elements of Self-Defense, cont.Defense, cont.

An aggressor (usually) cannot claim An aggressor (usually) cannot claim self-defense if the original victim self-defense if the original victim fights backfights back

If the belief of the need of force is If the belief of the need of force is mistaken, self-defense can still be mistaken, self-defense can still be used if the belief was reasonableused if the belief was reasonable

If a person honestly, yet unreasonably If a person honestly, yet unreasonably believes that a situation calls for lethal believes that a situation calls for lethal self-defense the defender will be held self-defense the defender will be held liable for manslaughter, not murderliable for manslaughter, not murder


Two Standards for Self-Two Standards for Self-DefenseDefense

SubjectiveSubjective defendant must demonstrate an honest defendant must demonstrate an honest

belief that he or she confronted an belief that he or she confronted an imminent attackimminent attack

ObjectiveObjective defendant must demonstrate that a defendant must demonstrate that a

reasonable person under the same reasonable person under the same circumstances would have believed that circumstances would have believed that he or she confronted an imminent attackhe or she confronted an imminent attack


Reasonable Belief of Reasonable Belief of Self-DefenseSelf-Defense

Defendant must reasonably believe Defendant must reasonably believe that the threatened harm is imminentthat the threatened harm is imminent the law encourages peaceful resolutions to the law encourages peaceful resolutions to

conflict whenever possibleconflict whenever possible self-defense should be a last resortself-defense should be a last resort need for self-defense should be genuine need for self-defense should be genuine

and proportionate to the threatened harmand proportionate to the threatened harm When acting in self-defense, When acting in self-defense,

individuals cannot use excessive force.individuals cannot use excessive force.


The Castle DoctrineThe Castle Doctrine

Very few jurisdictions require the Very few jurisdictions require the defender to retreat.defender to retreat.

The castle doctrine holds that The castle doctrine holds that individuals need not retreat inside individuals need not retreat inside their own home.their own home.

Aggressors employing non-deadly Aggressors employing non-deadly force must clearly abandon the force must clearly abandon the struggle and withdraw in good faith struggle and withdraw in good faith to be able to claim self-defense.to be able to claim self-defense.


Legal EquationLegal Equation


Defense of OthersDefense of Others

Allowed at common law to defend Allowed at common law to defend spouse, family, employees, and spouse, family, employees, and employersemployers

Originally. U.S. used the alter ego Originally. U.S. used the alter ego rule.rule.

Model Penal CodeModel Penal Code objective test for intervention in objective test for intervention in

defense of othersdefense of others


Defense of HomeDefense of Home

At common law, lethal force was At common law, lethal force was allowed when it was reasonably allowed when it was reasonably believed to be required to prevent an believed to be required to prevent an imminent and unlawful entry.imminent and unlawful entry.

States typically allow lethal force States typically allow lethal force when it is reasonably believed that when it is reasonably believed that the intruder intends to commit a the intruder intends to commit a felony within the dwelling.felony within the dwelling.

Some states have “make my day laws”Some states have “make my day laws”


Execution of Public Execution of Public DutiesDuties

Law enforcement officials must Law enforcement officials must frequently engage in activities that frequently engage in activities that would be illegal for ordinary would be illegal for ordinary citizens.citizens.


Resisting Unlawful Resisting Unlawful ArrestArrest

At common law, individuals could use At common law, individuals could use any degree of force to resist so long any degree of force to resist so long as it did not lead to the death of the as it did not lead to the death of the arresting officer.arresting officer.

Most states hold that illegal arrest Most states hold that illegal arrest can be resisted with no more force can be resisted with no more force than is absolutely necessary.than is absolutely necessary.

Some states use the English rule Some states use the English rule instead of the above.instead of the above.


NecessityNecessity

Conduct otherwise criminal is Conduct otherwise criminal is justified when undertaken to justified when undertaken to prevent a greater harm.prevent a greater harm.

““Choice of Evils” defenseChoice of Evils” defense Evaluated on a case-by-case basisEvaluated on a case-by-case basis


Controversy of NecessityControversy of Necessity

People should obey the law People should obey the law whenever possiblewhenever possible

People may make the wrong choice People may make the wrong choice of evilsof evils

Has been used in political causes Has been used in political causes Is rarely properly argued, yet Is rarely properly argued, yet

frequently attemptedfrequently attempted


Controversy of Necessity, Controversy of Necessity, cont.cont.

Harm to be avoided must be immediate Harm to be avoided must be immediate and imminent.and imminent.

Defendant must not have been Defendant must not have been substantially responsible for the creation substantially responsible for the creation of the emergency.of the emergency.

Harm chosen must be the lesser of the Harm chosen must be the lesser of the two.two.

No legal alternatives must exist to avoid No legal alternatives must exist to avoid the harm.the harm.

The criminal statute violated must not The criminal statute violated must not preclude the necessity defense.preclude the necessity defense.


ConsentConsent

Typically, consent from a victim is Typically, consent from a victim is not a defense.not a defense.

ExceptionsExceptions incidental contactincidental contact contact resulting from sporting eventscontact resulting from sporting events socially beneficial activitysocially beneficial activity


Consent, cont.Consent, cont.

When it is a valid defenseWhen it is a valid defense person giving it must have legal person giving it must have legal

capacitycapacity must not have been tricked by fraud or must not have been tricked by fraud or

deceitdeceit must have given permission before the must have given permission before the

eventevent

chapter 8 justifications. lippman, contemporary criminal law, second edition chapter summary...

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imperfect defenses

imperfect affirmative

contemporary criminal

successful excuse defenses

common law

justification defense

criminal acts

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