Chapter Five

1. Chapter Five Defenses to Criminal Liability: Justifications Joel Samaha

2. Learning Objectives • That defendants are not criminally liable if their actions were justified under the circumstances. • That defendants are not criminally liable if they were not responsible for their actions. • Understand how the affirmative defenses operate in justified and excused conduct. • Appreciate that self-defense limits the use of deadly force to those who reasonably believe they are faced with the choice to kill or be killed right now. • To know and understand the differences, of the four elements of self-defense. • Understand the retreat rule and appreciate its historic transformation. • Appreciate the historic transformation of retreat and its shaping of the stand-your-ground rule and the retreat rule. • Understand that there is no duty to retreat from your own home to avoid using deadly force. • Appreciate that the new “Castle Doctrine” laws are transforming the law of self-defense. • To know that the choice-of-evils defense, choosing to commit a lesser crime to avoid an imminent threat of harm from a greater crime is justified. • That the defense of consent represents the high value placed on individual autonomy in a free society.

3. Defenses to Criminal Liability Behavior that is justifiable or excusable does not lead to criminal liability Justifications and excuse comprise many of the defenses to criminal liability Justification defenses- defendants admit responsibility but claim that what they did was right under the circumstances Excuse defenses-defendants admit that what they did was wrong, but claim they are not responsible

4. Proving Defenses in Court Affirmative defenses require the defendant to raise the issue and put on some evidence supporting his or her claim (burden of production) Failure-of-proof defenses require the defendant only has to raise a reasonable doubt about the prosecution’s proof of just one element in the crime

5. Perfect and Imperfect Defenses Perfect defenses Imperfect defenses • Allow defendant to escape all criminal liability if they are successfully raised (“they let the defendant walk”) • Most defenses are perfect defenses • Insanity defense is not a perfect defense because even if defendant succeeds, there will generally be some commitment • Either the defense is an imperfect defense and if defense is successfully raised, the defendant will not “walk” • Diminished capacity (see Chapter 6) • OR a perfect defense which is not completely fulfilled • Example: Swann v. United States • Jury could consider evidence that Swann honestly but unreasonably believed he needed to use deadly force in self-defense and convict on manslaughter rather than murder

6. Mitigating Circumstances Circumstances that convince fact finders (judges and juries) that defendants don’t deserve the maximum penalty for the crime they’re convicted of

7. Discussion Activity Review the list of possible mitigating circumstances and discuss a possible scenario for each that may justify sentence an offender to a lesser penalty: The victim was an aggressor in the incident. The offender played a minor or passive role in the crime or participated under circumstances of coercion or duress. The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants (drugs or alcohol) is not a mitigating circumstance Other substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense.

8. Self-Defense • Defense allows self-help due to necessity • Not retaliation • Not preemptive strikes • Only good before the law when: • The necessity is great • It exists “right now” • It’s for prevention only

9. Self-Defense Elements • Unprovoked Attack • Defender cannot be the initial aggressor, cannot have provoked the attack • Necessity • Only use force necessary to repel an imminent attack (one that is going to happen right now) • Proportionality • Defender can only use the amount of force necessary to repel the unlawful force • Deadly force can only be used to repel deadly attack • Reasonable Belief • Defender has to reasonably believe (objectively reasonable) that it is necessary to use force to repel the attack

10. Case: U.S. v Haynes • Facts: Hayes, the defendant, was convicted of burglarizing a general store. The defendant’s accomplice in the burglary, a relative of the store owners, only participated so that the Defendant could be caught in the act and had no actual intent to rob the store. • Issue: Are the actions of the defendant’s accomplice in entering the building imputable to the Defendant himself under the theory of accomplice liability? • Holding: No. The defendant and his accomplice did not have the same intent in entering the building and were therefore not accomplices for purposes of accomplice liability.

11. Case: People v. Goetz • Facts: Goetz , defendant, shot and wounded four youths he believed to be trying to “play with” him. Goetz claimed that he was certain that the youths did not have guns, but he was afraid, based on prior experiences, of being “maimed.” • Issue: Is the reasonable belief that a person is in imminent danger of death or serious bodily injury requirement for self-defense a wholly subjective test that focuses solely on the Defendant’s state of mind? • Holding: No. Allowing a person to justify his conduct by self-defense simply because he personally believes that his actions are justified cannot be a result the legislature intended.

12. Self-Defense: Retreat Rule • Retreat doctrine requires that a person retreat (if they can do so safely) before using force • English common law principle which survived in some American jurisdictions • Most jurisdictions did not require retreating, but allowed a person to “stand one’s ground” and kill in self-defense • Retreat Rule states you have to retreat from attack if you reasonably believe that you’re in danger of danger of death or serious bodily harm and backing off won’t unreasonably put you in danger of death or serious bodily harm • Castle exception (to the retreat rule) provides that when you are attacked in your own home you can stand your ground and use deadly force to fend off unprovoked use of deadly force against you only if you believe the attack threatens death or serious bodily harm

13. Domestic Violence In those states that have the retreat rule and the castle exception to the retreat rule, an issue arises when the attacker and the defender are cohabitants sharing the same “castle.” People v. Tomlins (1914): case involved a man killing his 22-year-old son in their cottage. The court held that the general rule that a person need not retreat in his or her own home applies whether the attacker is a cohabitant or an outsider.

14. Case: State v. Stewart • Facts: Stewart, the defendant, was a battered wife who endured many years of brutal abuse at the hands of her husband. Evidence at the trial indicated that she suffered from “battered-wife” syndrome. Stewart hid a loaded gun under the mattress of a spare bedroom. After another abusive incident, Stewart went to bed with her husband and decided to shoot him in his sleep. • Issue: Did Stewart belief that imminent danger was reasonable therefor actin in self defense • Holding: No. For self-defense to be applicable, the person must reasonably believe the threat is imminent. Stewart had time to extract herself from the danger, thus her fear of imminent danger was not objectively reasonable.

15. Defense of Others • Historically limited to members of immediate family • Trend is in opposite direction • Many states allow defense of anyone who needs immediate protection from attack • Others have to have the right to defend themselves before someone else can claim the defense • Ex: State v. Aguillard—abortion rights protestors could not claim defense of others, because the “others” could not legally defend themselves

16. Defense of Home and Property • Historically defense was limited to nighttime invasions • Modern statutes limit use of deadly force to cases where it is reasonable to believe intruders intend to commit crimes of violence against occupants • Defense generally didn’t cover the curtilage of the home (area immediately surrounding home) • Many statutes required entry into occupied home (no spring guns, dangerous dogs) • Can use force, but not deadly force, to protect property and prevent it from being taken from you • Defense based on necessity • Can run after and take back what someone has just taken from you Defense of Property:

17. New Castle Laws • Laws of defense of habitation and property are undergoing transformation • More than 40 states have proposed new legislation expanding law of “self-defense” • Florida Personal Protection Law • Sets out standard conditions of self defense, defense of others, then creates a presumption or reasonable fear of great bodily harm when others enter dwelling, car • Also allows other to stand their ground in any place (not limited to dwelling) and meet force with force, including deadly force • Also creates a presumption that anyone forcefully entering a dwelling intends to commit an unlawful act involving force or violence • Creates immunity from civil action and criminal prosecution for using deadly force under the statute

18. New Castle Laws • Supporters • Public reasserting fundamental rights (to protect homes and self) • Gun Control Advocates • Creates violence by citizens, citizens have more right to use deadly force than the police • License to kill • Sends wrong message to people

19. New Castle Laws (cont.) • Law Enforcement Concerns: • Unintended negative consequences for public safety created by new castle laws • Officers use of force • Operations and training requirements • Increased investigation burdens • Law enforcement attitudes and their impact on officer performance • Doubt that these laws deter crime • Officer’s use of force • Imbalance between civilians right to use deadly force and officers rights creates dangerous situations • No knock search implications • Presumption of reasonable danger provisions means civilians can shoot officers entering to serve warrant

20. New Castle Laws (cont.) • Operations and Training Requirements • Difficult for officers to determine whether the new law is properly invoked due to newness of law and lack of cases interpreting law • Need continued training where and when castle expansion might apply • Increased Investigative Burdens • Prior to law: investigate dangerous force imminent, duty to retreat • Now: investigate self-defense claims in many more cases • Proving the negative (that the owner did not under a potential claim of castle doctrine)….rather than disproving a claim of self-defense (because of the presumption in the law)

21. New Castle Laws (cont.) • Effect of Law Enforcement Attitudes on Performance • Practical concerns: officers sentiment that dead victims got what they deserved leads to failure to carry out more intensive investigation • Expanded area of no retreat law means that there will be more defendants invoking castle exception • Burden on officers time • Apathy resulting

22. New Castle Laws (cont.) • Cases: • Jennifer Galas, Florida • Robert Lee Smiley, Florida • SarbrinderPannu, Mississippi • Gas clerk-Mississippi • Doubts that these laws deter crimes • Deterrent effect depends on whether the expansion of citizen’s rights to use deadly force is widely publicized • Deterrent effect depends on whether would-be criminals appreciate that citizens are armed and might kill or injure them • People might feel safer because they have right to defend themselves, or they may feel less safe because they don’t know who might be carrying weapons • May lead to more people carrying and using weapons

23. Discussion Activity Review the article below regarding the “castle doctrine” http://www.startribune.com/politics/statelocal/141497673.html Was the Governor’s choice to veto the “castle doctrine” bill was the right decision? What dangers/disadvantages could come about if the bill had not been vetoed. What advantages could come about if the bill had been implemented?

24. Choice of Evils • Ancient defense • Stems from doctrine of necessity • Criticized as vague, and wide open to interpretation • Examples • Escape from prison to avoid fire • Destroy home to stop fire from spreading • Choose to commit a lesser crime to avoid the harm of a greater crime (AKA: general defenses of necessity) • Three part analysis of MPC • Identify evils • Rank evils • Reasonably believe that the greater evil is imminent • MPC indicates that right choices are life, safety, and health over property • Defer to legislatures when they have already ranked evils

25. Case: Toops v. State • Facts: Toops, the defendant, was drinking beer with friends at Toop's house. They decided to drive into town. Toops' friend offered to drive due to Toops’ perceived intoxication. While driving, they spotted a police car. The driver panicked as he was a minor who had been consuming alcohol. The driver jumped from the driver’s seat into the back seat, allowing the car to become out of control. Toops jumped into the driver’s seat in an effort to keep the car from getting further out of control. Toops was arrested for DUI • Issue: Is Toops’ voluntary control of the car while intoxicated covered by the defense of necessity? • Holding: Yes. “Choice of evils” defense

26. Consent • Arises from value placed on individual autonomy • Criminal law “hostile” to the defense of consent • Some behavior requires lack of consent as an element of the crime (e.g., rape) • Some individuals are unable, because of statute, to give consent • Minors, legally incompetent individuals, intoxicated individuals for example • Situations where consent is recognized defense • No serious injury results from the consensual crime • The injury happens during a sporting event • The conduct benefits the consenting person • The consent is to sexual conduct

27. Consent • To be valid the defense of consent must be • Voluntary • Consent given was the product of free will, not of force, threat of force, promise or trickery • Forgiveness after the fact doesn’t turn involuntary consent into voluntary consent • Knowing • The person consenting must understand what he or she is consenting too • Person can’t been too young, under the influence, or insane to understand • Authorized • Consent must also be authorized • A person cannot give consent for someone for whom they are not legally responsible

28. Case: State v. Shelley • Facts: Shelley, the defendant, and Gonzalez were on opposing teams in a pick up basketball game. Gonzalez fouled Shelley several times and while trying to hit the ball, scratched Shelley’s face, drawing blood. Later in the game, Gonzalez made a move toward Shelley. Shelley swung and hit Gonzalez, breaking his jaw. • Issue: Did the behavior of Shelley exceed the behavior foreseeable in the game? • Holding: Yes. Shelley’s behavior was beyond the limit

29. Case: State v. Hiott • Facts: Hiott, the defendant, shot his friend in the eye while playing a game of shooting each other with BB guns. Hiott was charged with 3rd degree assault • Issue: Is consent a defense? • Holding: No. Consent is not a defense if activity consented to is against public policy

30. Case: State v. Brown • Facts: Brown, the defendant, beat his wife because she had been drinking. The couple had an agreement Brown would punish his wife by physical assault if she consumed alcohol • Issue: Is consent a defense? • Holding: No. No one has the right to beat another even if the person may ask for it.

31. Discussion Activity As you watch this brief video, reflect on the information presented in this chapter. Then discuss if self-defense or consent could or could not be applied in this event. http://abcnews.go.com/Entertainment/video/justin-bieber-investigated-for-laser-tag-assault-11905500