Criminal Law Class Notes 11/4/03


We probably won’t finish our second case today.  We’ll try to at least start it.  If need be, we’ll finish the case on Friday.




Since we’re going to do excuses, we want to start at the beginning and figure out just why we have excuses.  How does Jeremy Bentham explain excuses?


Bentham says that an excuse is a defense when their conduct was nondeterrable.  The only use for punishment, in a utilitarian view, is deterrence.  Therefore, if there is no value to punishment and only a net social cost, we shouldn’t punish.


Kadish says this is weak.  What’s wrong with Bentham’s argument?  Say, for the sake of argument, there are some people who are genuinely undeterrable.  Why might there still be some utilitarian value in punishing an undeterrable person?  There could be a specific deterrence or incapacitation justification.  If someone is undeterrable, they may be said to be dangerous, and thus it’s of value to keep them off the street.


What about the general deterrence value in punishing an undeterrable person?  If we excuse an undeterrable person, someone else might get the wrong message.  Someone else might believe that they can convince a jury that they are undeterrable.  Generally speaking, they may be less likely to obey the law because they will perceive it as full of holes.


So there are utilitarian reasons not to recognize excuses.  Utilitarians have tried to come up with better arguments than Bentham’s argument for why we should have excuses.  Professor Hart argues that excuses confine liability to cases where conduct was freely chosen, and therefore people will be happier overall because they can avoid punishment by obeying the law.  Huh?


Thus excuses have something to do with free choice, even under this utilitarian theory.


Kadish says that Hart misses the point.  Kadish says that we have excuses because we don’t want to blame those who were not responsible for their actions.  This is a fundamental point to a retributivist: when we punish people, we’re blaming them.  The essence of criminal law in this country and what makes it different from civil law is the blame and condemnation of the community resulting from a criminal conviction.  To blame someone who is not responsible for his actions is a falsehood.  It is a matter of justice, Kadish says, to excuse certain people even though they have caused some social harm.


Excuse law is now explained almost exclusively by some sort of retributive theory rather than utilitarian theory.  Even the utilitarian argument has a retributivist aspect to it.


Our theories of excuse are:


1.     Utilitarian theories

2.     Causation

3.     Character

4.     Choice (Personhood)


These theories are often used by the courts to justify why they will or will not accept a certain excuse.  These are very different theories: some are much broader and will excuse far more offenders than others.

United States v. Contento-Pachon


The defendant was a taxi driver in Bogota.  He was approached by a person who demanded that he smuggle cocaine into the United States.  He didn’t go to the police because he believed they were corrupt.  He said he didn’t want to smuggle the cocaine, but he and his family were threatened, and he did it.  He thought that he was being watched the whole time.


The defendant raises two defenses: the defense of duress and the defense of necessity.  Both defenses were excluded at trial.


There are three elements of the duress defense, according to the court: (1) immediacy of the threat, (2) well-grounded fear of the threat, and (3) lack of escapability from the threat.


The appellate court says that the trial court got it wrong because the threat really was immediate due to supposed constant surveillance of the people threatened.


Another way of describing duress as an excuse is that a person will be acquitted of any crime other than murder if: (1) the coercer issues an unlawful threat to imminently kill or grievously injure the defendant or another person, and (2) the defendant was not at fault in exposing himself to the threat.


The defendant also brings up a necessity defense.  The court says that necessity must be based on natural threats and not personal threats, like duress.  Cf. Dudley and Stephens, who were not coerced by a person but rather by their physical circumstances.  Dressler says this is a totally arbitrary distinction.  Under the Model Penal Code, the justification of necessity is not limited to physical threats.


The court also says that a necessity defense suggests that there was no social harm on balance.   On the other hand, the court says that duress suggests there was no culpability.  The court therefore implies that necessity is a justification rather than an excuse.


The Model Penal Code definition of duress is revolutionary compared to the common law.  It’s different from the common law definition in many different ways.  Is there a limit under Model Penal Code § 3.02 to duress?  Yes, the threat listed is “unlawful force”.  Only humans can do unlawful things.  The Model Penal Code is like the common law in the fact that it limits the defense of duress to human threats.  However, under the category of necessity, the Model Penal Code would allow either natural or human threats.  The Model Penal Code is well aware of this.  It says that even if § 3.02 applies, § 2.09 may still apply if you’re dealing with a human threat.


Why would the Model Penal Code limit duress to cases of unlawful threat?  Why can’t duress encompass natural threats?


In a previous edition of LaFave and Scott’s treatise, they said that duress was a justification rather than an excuse.[1]  They based this on the “choice of two evils” model.


Dressler doesn’t think duress is a justification.


LaFave and Scott might have argued that duress requires a threat of death and it can’t be used as a defense to murder.  Therefore, they would argue, that death is worse than any conduct that would be coerced and subsequently defensible.


What about the case of being coerced into causing equal harm to the harm that is threatened?  In that case, you don’t get to claim necessity.  However, you would have duress available if it is a justification.


So Dressler says that duress is an excuse and not a justification.  He says that most jurisdictions treat duress as an excuse rather than a justification.


Note that Article 3 of the Model Penal Code is labeled as “General Principles of Justification”, whereas Article 2 is labeled as “General Principles of Liability”.  This suggests that anything in Article 2 is not considered a justification, because if it was it would be in Article 3.


Does a person who claims duress, in effect, not have the mens rea necessary for a crime?  Dressler says, if anything, duress explains your mens rea.  Also, duress does not negate the voluntary act requirement.  You definitely will your muscles to do what you’ve been coerced into doing.


There are some times when duress can negate the mens rea of the crime under limited circumstances.  For example, if you are coerced into taking property, you might lack the intent to permanently deprive someone of property.  After you’re no longer under the threat, you might go straight to the police and tell them what you’ve done.


What’s the difference?  If you can argue duress as a lack of mens rea, you shift the burden of proof to the prosecution.  Sometimes duress is not just an excuse and sometimes necessity isn’t just a justification: in some cases, you may have a mens rea claim.


What’s different about the Model Penal Code provision on duress than the common law?  In the Model Penal Code, there need not be an imminent threat.  Also, under the Model Penal Code, a “kill or be killed” threat could work as an excuse: there is no murder exclusion.  Finally, it is a “person of reasonable firmness” standard.  It’s an objective rather than a subjective standard.


People v. Anderson


What’s the duress claim?  The victim was suspecting of molesting two girls.  The father of one of the girls says he’ll beat up the defendant unless he kills the victim.  The obvious problem in the case is that common law doesn’t allow duress to be used in a murder case.  Anderson argues that this is no longer so.


Why does the court conclude that duress shouldn’t be a defense in a murder case?  The court argues that it’s better to die than to kill.  The court talks about gang violence.


What’s wrong with this court’s analysis?  The court keeps talking about duress as a justification.  “Choice of evils” is necessity, which is justification, not an excuse.


Be very sensitive to the difference between excuse and justification.


Because the court gets confused, they raise arguments that aren’t on point.  If duress is an excuse, none of the court’s policy arguments are relevant.  We could develop arguments for why someone who might not be justified might still be excused.


This court is sort of deciding Dudley and Stephens all over again.


The more direct question is the Penal Code statute.  The defense argues that the statute modifies the common law and makes the duress defense available for all offenses except those punishable by death.  The defendant argues that since first-degree murder per se is no longer punishable by death, he should be allowed to use the duress defense.


How does the California Supreme Court get around that statute?  They interpret the legislature’s intent and say that they must not have intended that the applicability of the defense to shift over time.  Dressler suggests that this is a clear case of judicial activism.  It is also a violation of the rule of lenity, or the rule of strict construction.  In a tiebreaker situation, the defendant is supposed to win.


For Friday, we’ll talk about why the defendant was convicted of first-degree murder instead of second-degree murder.  Look at the California murder statute.[2]


Why did the court reject duress as a partial defense brining the defendant down to manslaughter?


What would be the outcome if the jury had concluded that the defendant was not guilty of kidnapping, given that he was convicted of felony murder?


Also, look at the hypo in the dissenting opinion and the majority’s answer.  Be prepared to talk about them.


Then our special guest will be Ted Bundy!


Back to Class Notes

[1] In the current edition, LaFave has moved duress to the “excuse” chapter.

[2] § 187 on an undercover cop.