Criminal Law Class Notes 10/27/03


When you cite cases in your memo, don’t worry about the font, and don’t use a bibliography.  The research log will stand in its place to some degree.  Use the Bluebook for case cites, and if you have to pinpoint cite, just give a page number but don’t worry about bibliographical stuff.


Categories of defenses


1.     Failure-of-proof defenses

2.     Offense modifications

3.     Justifications

4.     Excuses

5.     Non-exculpatory public policy defenses


We have already seen a few defenses, such as mistake of fact and mistake of law as well as the “partial defense” of provocation.


Take, for example, mistake of fact.  Which of the five categories above contains mistake of fact?  It’s a failure-of-proof defense.  Mistake of fact in a rape case negates an element of the alleged offense: the mens rea.


In the “kinky wife” case, Lord Hailsham says there is no room for mistake of fact as a “defense”.  He put defense in quotes because he thinks that failure-of-proof isn’t a defense in the ordinary sense.  It’s sort of more like a lack of offense.  The defense tries to break down an essential element of the crime, showing that it hasn’t been proven beyond a reasonable doubt.


The rest of the defenses that we’ll talk about in this chapter will fall into the categories of justification and excuse.


If conduct is justified, it doesn’t need to be excused.  A justification defense says that what the defendant did wasn’t wrong.  You don’t need an excuse for an act that’s not bad.  An excuse, on the other hand, focuses on the actor rather than the act.




Deadly force used in self-defense is justified at common law when:


The defendant is a non-aggressor and the defendant reasonably believes that deadly force is necessary to repel an imminent, unlawful, and deadly attack by the other person.


This set of elements also fit the structure of a justification defense, namely:


1.     Proportionality – the force used is proportional and reasonable in relation to the harm threatened

2.     Necessity – the force used is necessary to protect the interest at stake


Deadly force generally means either force likely to cause death or serious bodily harm.  In order to justify the use of self-defense on the basis of deadly force, you must be trying to repel deadly force in response.


Ordinarily, to support a justification defense, the defendant must have a reasonable belief in the proportionality and necessity of the action taken.  It is not necessary to show that the force used was objectively proportional and necessary.  It is only necessary to show that the actor believed that the force used was proportional and necessary.  But what is our standard of reasonableness?  We’ll get into this more tomorrow.


Note 1b on p. 459


This is the “Southern mountain man” example.  Is the defendant an aggressor in this case?  Is this case distinguishable from Peterson?  At common law, it appears that the “Southern mountain man” created the need to kill him by sleeping with the victim’s wife.


We get mixed signals from Peterson.  How do we resolve this?  We can time frame what the court calls “the difficulty”.  If we look at the whole evening, we might come to a different result than if we start at the point where the victim takes out a knife.


In order to find the aggressor, we are looking for an “affirmative unlawful act reasonably calculated to produce” a potentially fatal fight.  Who dunnit?  Was it the defendant or the victim?


What would the Model Penal Code do with this case?  Which subsection appears to speak to the issue of this case?  § 3.04(2)(b)(i) deals with one limitation on the use of deadly force: the defendant mustn’t provoke the use of force with the purpose of causing death or serious bodily injury.  Thus, the victim and not the defendant is the aggressor, because he was the first one with the purpose of causing death or serious bodily injury.


What would it take for the defendant to be the aggressor?  The mountain man would have to sleep with the victim’s wife with the purpose of provoking victim into coming after him and thus having the chance to kill the victim.  This would be probably more calculation than we could reasonably expect from a “Southern mountain man”.


Note 1a


Who’s the aggressor?


At common law, Dina is the aggressor because it was unnecessary for her to use deadly force.  Also, self-defense cannot be claimed by someone who deliberately puts himself in danger.


The Model Penal Code says that § 3.04(2)(b)(ii) says that you can’t use self-defense if you can retreat, except if you’re in your own home or you’re a public officer.  Dina can solve her problem non-violently by walking down some other street.  Just because she has a right to walk down the street she wants to walk down doesn’t mean that she can kill to preserve that right.  On the other hand, if walking down that street was a duty, she would be able to use deadly force in self-defense.


The Model Penal Code, as well as common law, treats human life very, very highly.  The sanctity of human life is valued so highly that the law doesn’t even want “bad guys” killed unless it’s absolutely necessary.


Note 4 – State v. Dill


Was deadly force really necessary in this case?  Couldn’t the defendant have driven away?  Couldn’t the defendant have forced the victim to back off using the gun?  There seem to be a few different alternatives.  The jury convicted in this case, and the appellate court affirmed.


Note 7 – State v. Garrison


The trial court convicted, and the appellate court affirmed.


Garrison seems to have done everything that we would want him to do.  He didn’t kill the victim until he seemingly had run out of options.  It’s very difficult under the Model Penal Code and at common law to win on a self-defense claim, because we don’t want anybody to die, not even bad guys.


A hypothetical based on Note 9


Dressler is a police officer and he goes to someone’s house socially and a little kid points a real gun at him.  The kid shoots at him and misses.  Dressler is backed into a corner.  He kills the kid.  Is that self-defense?  Based on the elements of self-defense at common law, it seems as though Dressler should have the defense.  It bothers us that Dressler has killed a child.  The law seems to tell us that killing a child is the right outcome.


Four theories of justification


1.     Public benefit

2.     Moral forfeiture

3.     Moral rights

4.     Lesser harm


These are four alternative theories to explain all justification defenses.  These can be used to think about why we would ever justify taking anyone’s life under any of these justifications.


We’ll consider these theories in cases of battered women.  Can we justify a battered woman killing her abuser while he is asleep?


Under these different theories, we’ll get different results in the Dressler v. small child hypothetical.


Labeling something a justification as opposed to an excuse will have practical significance.


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