1. Chapter 8 Justifications & Defenses

2. Lippman, Contemporary Criminal Law, Second Edition Chapter Summary Affirmative Defenses Affirmative Defenses Mitigating Circumstances Mitigating Circumstances Self-Defense Self-Defense Defense of Others Defense of Others Defense of Home Defense of Home Execution of Public Duties Resisting Unlawful Arrest Necessity Consent

3. Lippman, Contemporary Criminal Law, Second Edition Introduction Prosecutors must overcome the presumption of innocence of the defendant and prove guilt beyond a reasonable doubt. Prosecutors must overcome the presumption of innocence of the defendant and prove guilt beyond a reasonable doubt. However, defendants can present defenses, which justifies or excuses their acts. However, defendants can present defenses, which justifies or excuses their acts. When putting an affirmative defenses forward, the burden of production and persuasion are moved to the defense. When putting an affirmative defenses forward, the burden of production and persuasion are moved to the defense.

4. Discussion: Discuss/debate the fact that consent is not typically a defense at trial. Discuss/debate the fact that consent is not typically a defense at trial. After all, if a person literally “asked for it,” should a defendant be convicted? After all, if a person literally “asked for it,” should a defendant be convicted? What about situations such as patient-assisted suicide. What about situations such as patient-assisted suicide. What Do You Think?

5. Types of Defenses Used? What Kinds Of Defenses Have You Heard Being Used By Defendants?

6. What Do You Think? Should citizens be required to “retreat to the wall” or should they “stand their ground”?

7. Affirmative Defenses Justification Defenses Justification Defenses make the case that otherwise criminal acts are approved of and encouraged by society given the circumstances make the case that otherwise criminal acts are approved of and encouraged by society given the circumstances Examples? Examples? Excuse Defenses Excuse Defenses make the case that the act does deserve condemnation but the defendant should not be held liable due to a personal disability make the case that the act does deserve condemnation but the defendant should not be held liable due to a personal disability Examples? Examples?

8. Lippman, Contemporary Criminal Law, Second Edition Affirmative Defenses at Common Law At common law, successful justification defenses resulted in acquittals At common law, successful justification defenses resulted in acquittals At common law, successful excuse defenses provided the defendant the opportunity to request that the king exempt them from the death penalty At common law, successful excuse defenses provided the defendant the opportunity to request that the king exempt them from the death penalty

9. Lippman, Contemporary Criminal Law, Second Edition Theories for the Justification Defense Moral Interest Moral Interest Superior Interest Superior Interest Public Benefit Public Benefit Moral Forfeiture Moral Forfeiture

10. Lippman, Contemporary Criminal Law, Second Edition Affirmative Defenses at Common Law, cont. A perfect affirmative defense satisfies every necessary element of the defense. A perfect affirmative defense satisfies every necessary element of the defense. An imperfect affirmative defense satisfies only some of the necessary elements. An imperfect affirmative defense satisfies only some of the necessary elements. Imperfect defenses serve as mitigating circumstances during sentencing. Imperfect defenses serve as mitigating circumstances during sentencing.

11. Lippman, Contemporary Criminal Law, Second Edition Mitigating Circumstances Some evidence is not relevant for affirmative defenses. Some evidence is not relevant for affirmative defenses. This evidence may be used, however, at sentencing to reduce the defendant’s punishment. This evidence may be used, however, at sentencing to reduce the defendant’s punishment. good-motive defense good-motive defense If mitigating circumstances are overwhelming, a defense attorney may push for the jury to acquit anyway by means of “jury nullification.” If mitigating circumstances are overwhelming, a defense attorney may push for the jury to acquit anyway by means of “jury nullification.”

12. Lippman, Contemporary Criminal Law, Second Edition Self-Defense Vigilante justice is discouraged. Vigilante justice is discouraged. However, self-defense (of an innocent victim) is a legitimate defense. However, self-defense (of an innocent victim) is a legitimate defense.

13. 7 Elements of Self-Defense 1) Individual most posses a reasonable belief that force is required to defend self 2) Defender must reasonably believe that force is required to prevent the imminent and unlawful infliction of death or serious bodily harm 3) Force employed must not be excessive 4) Deadly force may not be used if a defender can safely and reasonably retreat

14. Lippman, Contemporary Criminal Law, Second Edition Seven Elements of Self-Defense, cont. 5) An aggressor (usually) cannot claim self- defense if the original victim fights back 6) If the belief of the need of force is mistaken, self-defense can still be used if the belief was reasonable 7) If a person honestly, yet unreasonably believes that a situation calls for lethal self-defense the defender will be held liable for manslaughter, not murder

15. Lippman, Contemporary Criminal Law, Second Edition 2 Standards for Self-Defense Subjective Subjective defendant must demonstrate an honest belief that he or she confronted an imminent attack defendant must demonstrate an honest belief that he or she confronted an imminent attack Objective Objective defendant must demonstrate that a reasonable person under the same circumstances would have believed that he or she confronted an imminent attack defendant must demonstrate that a reasonable person under the same circumstances would have believed that he or she confronted an imminent attack

16. Lippman, Contemporary Criminal Law, Second Edition Reasonable Belief of Self-Defense Defendant must reasonably believe that the threatened harm is imminent Defendant must reasonably believe that the threatened harm is imminent the law encourages peaceful resolutions to conflict whenever possible the law encourages peaceful resolutions to conflict whenever possible self-defense should be a last resort self-defense should be a last resort need for self-defense should be genuine and proportionate to the threatened harm need for self-defense should be genuine and proportionate to the threatened harm When acting in self-defense, individuals cannot use excessive force. When acting in self-defense, individuals cannot use excessive force.

17. Lippman, Contemporary Criminal Law, Second Edition The Castle Doctrine Very few jurisdictions require the defender to retreat. Very few jurisdictions require the defender to retreat. The castle doctrine holds that individuals need not retreat inside their own home. The castle doctrine holds that individuals need not retreat inside their own home. Aggressors employing non-deadly force must clearly abandon the struggle and withdraw in good faith to be able to claim self- defense. Aggressors employing non-deadly force must clearly abandon the struggle and withdraw in good faith to be able to claim self- defense.

18. Lippman, Contemporary Criminal Law, Second Edition Legal Equation

19. Lippman, Contemporary Criminal Law, Second Edition Defense of Others Allowed at common law to defend spouse, family, employees, and employers Allowed at common law to defend spouse, family, employees, and employers Originally. U.S. used the alter ego rule. Originally. U.S. used the alter ego rule. Model Penal Code Model Penal Code objective test for intervention in defense of others objective test for intervention in defense of others

20. Lippman, Contemporary Criminal Law, Second Edition Defense of Home At common law, lethal force was allowed when it was reasonably believed to be required to prevent an imminent and unlawful entry. At common law, lethal force was allowed when it was reasonably believed to be required to prevent an imminent and unlawful entry. States typically allow lethal force when it is reasonably believed that the intruder intends to commit a felony within the dwelling. States typically allow lethal force when it is reasonably believed that the intruder intends to commit a felony within the dwelling. Some states have “make my day laws” Some states have “make my day laws”

21. Lippman, Contemporary Criminal Law, Second Edition Execution of Public Duties Law enforcement officials must frequently engage in activities that would be illegal for ordinary citizens. Law enforcement officials must frequently engage in activities that would be illegal for ordinary citizens. What are some examples?

22. Lippman, Contemporary Criminal Law, Second Edition Legal Equation

23. Lippman, Contemporary Criminal Law, Second Edition Resisting Unlawful Arrest At common law, individuals could use any degree of force to resist so long as it did not lead to the death of the arresting officer. At common law, individuals could use any degree of force to resist so long as it did not lead to the death of the arresting officer. Most states hold that illegal arrest can be resisted with no more force than is absolutely necessary. Most states hold that illegal arrest can be resisted with no more force than is absolutely necessary. Some states use the English rule instead of the above. Some states use the English rule instead of the above.

24. Lippman, Contemporary Criminal Law, Second Edition Legal Equation

25. Lippman, Contemporary Criminal Law, Second Edition Necessity Conduct otherwise criminal is justified when undertaken to prevent a greater harm. Conduct otherwise criminal is justified when undertaken to prevent a greater harm. “Choice of Evils” defense “Choice of Evils” defense Evaluated on a case-by-case basis Evaluated on a case-by-case basis

26. Lippman, Contemporary Criminal Law, Second Edition Legal Equation

27. Lippman, Contemporary Criminal Law, Second Edition Controversy of Necessity People should obey the law whenever possible People should obey the law whenever possible People may make the wrong choice of evils People may make the wrong choice of evils Has been used in political causes Has been used in political causes Is rarely properly argued, yet frequently attempted Is rarely properly argued, yet frequently attempted

28. Lippman, Contemporary Criminal Law, Second Edition Controversy of Necessity, cont. Harm to be avoided must be immediate and imminent. Harm to be avoided must be immediate and imminent. Defendant must not have been substantially responsible for the creation of the emergency. Defendant must not have been substantially responsible for the creation of the emergency. Harm chosen must be the lesser of the two. Harm chosen must be the lesser of the two. No legal alternatives must exist to avoid the harm. No legal alternatives must exist to avoid the harm. The criminal statute violated must not preclude the necessity defense. The criminal statute violated must not preclude the necessity defense.

29. Lippman, Contemporary Criminal Law, Second Edition Consent Typically, consent from a victim is not a defense. Typically, consent from a victim is not a defense. Exceptions Exceptions incidental contact incidental contact contact resulting from sporting events contact resulting from sporting events socially beneficial activity socially beneficial activity

30. Lippman, Contemporary Criminal Law, Second Edition Consent, cont. When it is a valid defense When it is a valid defense person giving it must have legal capacity person giving it must have legal capacity must not have been tricked by fraud or deceit must not have been tricked by fraud or deceit must have given permission before the event must have given permission before the event

31. Lippman, Contemporary Criminal Law, Second Edition Legal Equation

32. Activity: Review article: “Is self-defense law vigilante justice?” Review article: “Is self-defense law vigilante justice?” Discuss at what point is an individual citizen allowed to use deadly force? Discuss at what point is an individual citizen allowed to use deadly force?

33. Video Review: 911 video self defense woman home invasion http://www.youtube.com/watch?v=XkxrH_hXIoY Video, Guns used in self-defense over 2.5 million times a year http://www.youtube.com/watch?v=g-wBwpL-pIE Video, Scott v. Harris police chase http://www.youtube.com/watch?v=DBY2y2YsmN0 http://www.youtube.com/watch?v=DBY2y2YsmN0