Criminal Law Class Notes 11/3/03


Justification defenses


·        Self-defense

·        Defense of others

·        Defense of property – at common law, and in the Model Penal Code, it is never justifiable to use deadly force to defend personal property.

·        Defense of habitation – this is the defense of a person protecting their home from intrusion by other persons.  Under limited circumstances, the common law justifies deadly force to prevent the intrusions into one’s home.

·        Crime prevention/law enforcement – if you’re trying to prevent a crime from occurring.  At common law, deadly force can never be used to prevent a misdemeanor, however, under certain circumstances, deadly force can be used to prevent felonies.

·        Arrest – deadly force is permitted under certain circumstances when you’re dealing with a felon.

·        Necessity – that’s the topic for today.  This is the defense of last resort.  This is the “backup” defense.  It’s the one you use when nothing else applies.


A defense attorney need not pick just one defense among these choices.  A defendant may want to use several defenses.


Nelson v. State


Nelson’s truck was stuck in a marshy area off the highway.  He was with two friends and they tried to get the truck out.  They went to a highway equipment area and stole a dump truck from there.  They took it back to the scene and attempted to get the truck out.  Then the dump truck got stuck as well.


Nelson was charged with joyriding (temporary vehicle theft) and reckless destruction of personal property.  The defendant raises the defense of necessity.


Three elements are required in order to show necessity:


1.     The act charged must have been done to prevent a significant evil.

2.     There must have been no adequate alternative.

3.     The harm caused must not have been disproportionate to the harm avoided.


There’s a balancing test here between the harm actually caused and the harm averted by the act.  The weird thing is that the court weighs the harm averted by the defendant’s acts against the statutory criminal penalties for the offenses committed by the defendant.


The court also finds that there is no real emergency.  In particular, they cite the fact that one of the defendant’s friends ended up sleeping in the truck, which goes to show that it wasn’t sufficiently necessary to get the truck out right away.


The Model Penal Code on necessity: § 3.02


The drafters thought the necessity defense was essential.  Why?  We want to encourage sort of “efficient breach” of the law.  If obeying the law involves greater harm to society than breaking the law, we want people to break it.  This is kind of a belt to keep the legislature’s pants from falling down in exceptional situations.  If the legislature would have said “Yes, break the law in this case”, then we want to let the offender off the hook.  It would be irrational to want people to obey the law if we believed that the legislature in a certain situation would say “do break the law” because that would result in a better outcome for society than obeying the law.


Although necessity (or the “choice of evils” justification defense) is typically thought of as a utilitarian justification because of its balancing aspect, it can also be viewed in non-utilitarian terms by comparing the moral value of one choice of action against another.


Until the Model Penal Code came along, most states did not have a necessity defense in writing.  Thanks to Model Penal Code § 3.02, most states have such a defense on the books.  We want to have this catch-all defense when no other defense applied.  It’s a “residual” defense.


Consider the various defenses as applied to Nelson.  None of them work; none of them deal with this kind of case.


In the case of Norman, you mustn’t argue her case on the basis of necessity.  That is inappropriate because you must use whatever defenses are there to deal with the problem.  Self-defense applies in Norman.  You thus cannot apply necessity in that case.


Necessity as a defense is defined in different ways in different states.  One thing that the jurisdictions have in common, however, is that the emergency generating the necessity must be imminent.


The Model Penal Code requires that the defendant chooses the lesser of two evils.  There mustn’t be any statutory exceptions or defenses to the general application of the necessity defense in the specific situation involved.  There also mustn’t be an explicit statutory exclusion of the necessity defense.


Model Penal Code commentary


A defendant must actually believe that his conduct is necessary to avert a greater evil.  Say, for example, a pharmacist gives out drugs without a prescription, and there’s really an emergency.  If the pharmacist doesn’t know it’s an emergency, he has no defense.  Only when the pharmacist is aware of the emergency will his conduct be justified.


Justification focuses on the act.  Excuse focuses on the actor.  But in this case, the actor has chosen to do the right thing, even if for the wrong reasons.  Should we give him the benefit of the defense?


A defendant must be acting to avoid a greater evil, not an equal or lesser evil.


What is Nelson trying to argue?  When we’re trying to compare harms, the issue isn’t an after-the-fact determination of what harms might be caused.  For example, what if, in avoiding one death, you cause two deaths when you thought you were causing zero deaths?  Shouldn’t we look at what is foreseeable?


Who determines what is the lesser of the two harms?  Is it the defendant, is the judge, or is it the jury?


According to the Model Penal Code § 3.02, the defendant’s subjective view doesn’t matter.  The Model Penal Code punts on the question of whether the judge or the jury should make that decision.


Since necessity is a question of social harm and not a question of tort law, the social harm of a certain “evil” may be different than the market or tort value of that “evil”.


In determining which is the lesser of two evils, it’s not self-evident how it’s going to be decided.  The necessity defense doesn’t help you if you recklessly or negligently created the necessity.  This section is glitchy.  It’s hard to apply to a crime that has a number of different mens rea terms attached to it.


The Queen v. Dudley and Stephens


This is the single most important case in Anglo-American jurisprudence to deal with the following question: is it ever justifiable to kill an innocent person in order to save a greater number of innocent persons?


What does this case say?  Does this case say that it is never justifiable to kill an innocent person?


Was the problem that they picked the wrong person?  If Dudley and Stephens had drawn lots, would that have saved them from prosecution?


Should Dudley and Stephens have waited longer?


The court in this case confuses justification and excuse.  At least, they use these terms interchangeably.


The court suggests that sometimes the law has to set up standards that we can’t really live up to.  Can we punish someone when we all would have done the same thing?


If you’re a retributivist, then it is never right to kill an innocent person in order to save a greater number of innocent lives.  If you’re a Kantian, you believe that you must never use a person as a means to an end rather than as an end in itself.  That’s what Dudley and Stephens did with Parker: they used him as a means to an end, violating what Kant would say is a categorical imperative.


If you’re a utilitarian, then you have some balancing to do.


Hypotheticals, pp. 547-548


Act-utilitarian – What would be the right thing to do in this particular case?


Rule-utilitarian – What would be the better outcome if we announced this to the entire world?  What would be the utilitarian effect?


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