CRM 321 Mod 3 AVP Script: Defenses to Criminal Liability: Justifications & Excuses Slide 1 : Title slide Slide 2 This module will focus mainly on what the law calls affirmative defenses. These types of defenses offer a justification or excuse for the crime committed. For example, a defendant must admit to shooting the victim to offer the excuse of self-defense. To have an affirmative defense considered by the jury, the defendant must offer evidence of the justification or excuse - he cannot merely claim the defense without some proof. An affirmative defense must be proven by a preponderance, or greater weight, of evidence. Most affirmative defenses (but not all) are what is called a perfect defense which means if the defense is successful, it results in a full acquittal rather than a conviction for a lesser included crime. There is a down-side however; the risk in offering an affirmative defense, as opposed to others where the crime is denied, is that a defendant must admit to having committed the act - then offer the justification or excuse. Where the risk lies is that if the jury rejects the excuse, they are left only with the defendant s admission of committing the unlawful act. Slide 3 The most common affirmative defense is self-defense. For the claim self-defense, there must be evidence of each element of the defense, which are: an unprovoked attack - it is not selfdefense if you started the fight; necessity - you must show that it was necessary to defend yourself, as opposed to other options; proportionality - you must meet force with similar force - if someone swings a fist at you, shooting them is not a proportional response - however, if the attacker is a professional boxer (and you are not) - defending yourself with just your fists is probably a disproportional response and you might be allowed to use other means of protection; and finally, in cases of deadly force, a reasonable belief that your life was in danger. Some jurisdictions require you to retreat if possible before using force to defend yourself -
this requirement is situational and may be different if you are in a public place as opposed to your home or business. Slide 4 Similar to self-defense, the law usually allows a person to use force in the defense of others. Some states require a relationship of some sort with the person you are defending. Deadly force may be permitted in the same way as self-defense if you are defending a life. If you are just acting in the defense of property, deadly force is not permitted. Many states have now adopted laws known as the castle doctrine. Generally, these laws grant the right to use deadly force in self-defense with no need to retreat if you are any place you have the right to be. Castle laws have replaced the common law reasonable person standard with a burden shifting requirement. If a person was acting under a castle doctrine statute, their actions carry a presumption of being reasonable. A prosecutor in such a case carries the difficult burden to disprove the reasonableness of those actions - rather than the person who used force having to prove reasonableness. More than 40 states have passed versions of this law. Slide 5 Under the law, there is a doctrine known as choice of evils. It is also the general legal principle of the defense of necessity - which is choosing to commit a lesser crime to prevent the greater harm of a more serious one. For example choosing to speed to get to the hospital, breaking into a pharmacy during a disaster or emergency and dispensing drugs, breaking and entering a mountain cabin to get shelter during a snowstorm, etc. Under the Model Penal Code, the defense of necessity has the following elements: the defendant had to identify the evils; the defendant had to rank the evils; and in choosing the evil (crime) to commit, there had to be a reasonable belief that the greater evil is imminent. Slide 6 The defense of consent is based in the principles of individual freedom and responsibility. If two people on the street get into a fight, more than likely at least one of them is committing
the crime of battery. If two people get into a boxing ring and have a fight, no crime is committed because both people have given consent to be struck - therefore there is no battery. For consent to be a valid defense, it must be freely and voluntarily given, with no threat, coercion, fraud, etc. For example, if a person breaks into someone s home to steal property, it is a burglary because the entry was unlawful. A person who was invited to your home for a BBQ steals while they are present, it is only a theft and not a burglary because the entry was consensual. What if a person knocks on the door and fraudulently claims to be from the cable company, you give consent for them to enter, and while they are inside they steal something? The answer would be that it is a burglary. Even though you gave consent for them to enter, that consent was fraudulently given and is not valid. Consent must be knowingly given and the person giving consent must have an understanding as to what they are consenting to with a full understanding of the consequences. Consent only applies to adults, because a minor does not have the legal capacity to give consent. There are four common recognitions of consent under the law: it is only valid where there is no serious injury; it is a valid defense for reasonable and foreseeable injury during a sporting event - but would not apply, for example, to a fist fight during a softball game; it is a valid defense where the conduct benefits the consenting person; and it can be a valid defense in cases involving sexual conduct. Slide 7 Next we will examine the insanity defense. While most often seen in murder cases, it is available for any crime that requires proof of intent. Juries generally do not accept insanity as a justification or excuse so it is rarely successful. Insanity is not necessarily a perfect defense - an acquittal does not necessarily mean that the defendant goes free. If there is a true mental problem, the court can still order incarceration in a mental treatment facility. The law varies from state-to-state, but there are three common tests for insanity in the United States. They are the right-wrong test, also called the M Naghten Rule; irresistible impulse; and substantial capacity; we will look at each of the tests. The burden of proof for an insanity defense in
Federal Court requires the government to prove sanity beyond a reasonable doubt (assuming the defendant met the burden of establishing the defense). In most states insanity is an affirmative defense. Slide 8 The first test is the right-wrong test, which is that due to mental disease or defect the defendant did not know right from wrong. The term know is a simple awareness; the term wrong can be something that is legally wrong or morally wrong. The next test is irresistible impulse, which is even though you know what you are doing, and you know that it is wrong, you cannot stop yourself from doing it; there is no self-control due to a mental defect or disease. The elements of irresistible impulse are the defendant has a disease of the mind at the time of the crime; if the defendant did know right from wrong, he may be excused if - the mental disease caused the defendant to lose the power to choose right from wrong (the disease destroyed the defendant s free will); and the mental disease was the sole cause of the act. Finally, there is the substantial capacity test. This is the test adopted by the Model Penal Code and holds that there is no criminal liability if at the time of the crime the defendant lacks substantial capacity either to appreciate the criminality or wrongfulness of the act, or to conform his conduct to the requirements of the law. Slide 9 The defense of duress is simply being forced to do something against you will. The elements of duress are: threats death in some states; an immediacy of the threats; and a reasonable belief of the threats. Most states do not accept this defense for the crime of murder. There are two types of Intoxication defenses. Voluntary intoxication (meaning you became intoxicated on your own - and may include medications) does not equate insanity as an excuse or justification. In most jurisdictions, voluntary intoxication is not a defense. However, many states do allow the defense of involuntary intoxication where the defendant does not know (or is forced) to ingest intoxicants (not just alcohol).
Slide 10 The defense of entrapment is where it is alleged that the government is enticing a person to commit crimes they would not otherwise commit. Entrapment has both a subjective test and an objective test. The subjective test is, was there a predisposition to commit the crime?, and where did the intent come from? Predisposition factors include a criminal history of similar crimes, a willingness to commit similar crimes, display of expertise in committing crime, and readiness to commit crime. The objective Ttst is, would an ordinary person have been tempted to commit this crime? The focus is on the government s actions under this test. Slide 11 In recent time, there have developed what is known as defense syndromes. These include (but are not limited to) PMS syndrome, Post-Traumatic Stress Disorder, and Battered Spouse Syndrome. The most often seen is probably Battered Spouse Syndrome, which is a sub-category of PTSD. The Battered Spouse Syndrome defense is similar to self-defense and may satisfy the fear element of that defense. Most syndrome defenses are usually proved with expert witness testimony.