Criminal Law Class Notes
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.