Some reading:
Self-defense
Common law principles
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. You can use deadly force to defend against potential crimes other than murder.
At common law, if you act in justifiable self-defense, you’re not guilty of any crime. Even if you prove all the elements of the crime of murder, if you have a justification, then you’re not guilty. Even if you have the intent to kill that usually constitutes malice, you may not be guilty of the offense.
The “aggressor” issue
You can’t use deadly force in self-defense if you’re the aggressor at the time of the conflict. In order to find the aggressor, we are looking for an “affirmative unlawful act reasonably calculated to produce” a potentially fatal fight. Self-defense cannot be claimed by someone who deliberately puts himself in danger.
“Reasonable belief” at common law
Say a defendant shoots someone believing they have a real gun when the gun is actually fake. Under the reasonable belief requirement, even though the person couldn’t or wouldn’t have killed the defendant, the defendant still is acquitted even though what he did was objectively wrong. However, if, on the other hand, the gun was obviously a toy then the defendant loses the self-defense claim because the belief about the threat wasn’t objectively reasonable.
People v. Goetz – The reasonable person standard for self-defense as justification is an objective standard. Goetz felt that the prosecution gave an objective standard whereas the standard should have been subjective based on the statute. The intermediate appellate court argued that the emphasis in the phrase “he reasonably believes” is on “he”. That becomes a subjective standard because we’re not interested in what a reasonable person would do, but rather whether the defendant thought he was doing a reasonable thing.
The thing is that the defendant will obviously think that what he’s doing is reasonable. But the defendant may be an unreasonable person.
The Court of Appeals of New York rules that the statute was meant to create an objective standard. But how objective did the legislature intend it to be? Who is that reasonable person?
How can it be justifiable to kill an objectively innocent person? We might excuse someone for it, but maybe it wouldn’t be justified. The common law says, on the other hand, that such an act would not be justified, but rather excused. Dressler argues that this could create a situation where two people could justifiably kill each other.
State v. Wanrow – The jury may “stand in the shoes” of the defendant in assessing whether his or her conduct was justified. The basic issue in this case is bringing gender into the discussion of the reasonable person. What does this case stand for? Does this mean that a woman who uses self-defense must be judged by the standard of a reasonable woman, or must she be judged by the objective standard of a reasonable person? The ruling says that the defendant’s actions must be judged subjectively, not objectively. After this case, case law has clarified this result to mean that they use a “reasonable woman” standard. The Model Penal Code chooses “designedly ambiguous” language to describe the standard of behavior: “a reasonable person in the actor’s situation”.
State v. Norman – If North Carolina applies the common law, why isn’t Norman entitled to a self-defense claim? It rests on the meaning of the word “imminent”. At common law, this term means “just about right now”. We’re talking seconds, not minutes or hours or days or weeks. Since that’s not what we have in Norman, the Supreme Court of North Carolina represents the traditional view. Under the ruling of this case and in most common law jurisdictions, Norman would not even be entitled to an instruction on the justification of self-defense.
Does syndrome evidence arguably turn a justification defense into an excuse?
“Self-protection” and the Model Penal Code
§ 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. 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. 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. Thus, it’s very difficult under the Model Penal Code and at common law to win on a self-defense claim.
The Model Penal Code doesn’t focus on the amount of time before the actor will be killed, rather, it focuses on the actor to figure out if it is necessary now to use deadly force against the victim.
§ 3.04. This statute uses the word “immediately necessary” rather than “imminent”. The provision is general. The deadly force provision is § 3.04(2)(b). Even if you meet § 3.04(1), there are additional conditions in order for a valid justification to be constructed.
If an actor’s belief is sincere but reckless or negligent, the actor isn’t justified as far as reckless or negligent offenses. If the defendant was negligent in believing that a toy gun was actually real, then under the Model Penal Code the defendant wouldn’t be guilty of murder. The defendant would be guilty of negligent homicide if the defendant was negligent, and the defendant would be guilty of manslaughter if the defendant was reckless.
What the Model Penal Code does that is dramatically different from common law is that it doesn’t like the “all-or-nothing” proposition. In the three situations above, the defendant is not guilty in the first case, not guilty in the second case, but fully guilty in the third case. On the other hand, the Model Penal Code allows conviction for a lesser crime in the third case.
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.
Nelson v. State – There’s a balancing test here between the harm actually caused and the harm averted by the act. That’s the very definition of necessity.
The drafters of the Model Penal Code § 3.02 thought the necessity defense was essential because 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.
A defendant must actually believe that his conduct is necessary to avert a greater evil (and not an equal or lesser evil). The necessity defense doesn’t help you if you recklessly or negligently created the necessity.
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? 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.
Excuse
Excuse focuses on the actor, not the act. Excuse concedes that the act was bad, but there was something about the actor such that we’re willing to let them go without punishment. When we use an excuse defense, the burden of proof is placed on the defendant.
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.
However, say there are some people who are genuinely undeterrable. There may still be some utilitarian value in punishing an undeterrable person due to specific deterrence or incapacitation. 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.
Retributivists say that we have excuses because we don’t want to blame those who were not responsible for their actions. To blame someone who is not responsible for his actions is a falsehood. It is a matter of justice 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, and (4) choice (personhood).
Duress
Duress is an excuse and not a justification. Most jurisdictions treat it in this way. At common law, duress is no excuse for murder. In the Model Penal Code, however, there is no murder exception.
United States v. Contento-Pachon – 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.
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 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. There is a limit to duress under Model Penal Code § 3.02: 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.
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 – At common law, duress was not a defense to murder. Some intentional killings, if they are the result of provocation, reduce murder to manslaughter. But this isn’t a heat of passion case. Adequate provocation makes someone angry which makes them intentionally kill. It’s a lot harder to control yourself when you’re very angry. When we’ve very angry, our self-control is undermined. But we don’t think one’s self-control is fully undermined by anger. When you’re angry, you could do a lot of things other than kill. You could vent your anger in some other way.
Why couldn’t you have fear in place of anger in “heat of passion”? Fear is an emotion that is like anger in that it makes self-control more difficult. We may be able to empathize more with fear than with anger.
Anderson’s point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill, then it follows that you should give a similar defense with fear in the place of anger. Dressler seems to argue for just such a partial defense.
The Model Penal Code would actually agree with Anderson, although they wouldn’t use duress to get there and they wouldn’t use the “heat of passion” excuse. You would go straight to manslaughter based on the fact that the homicide was committed under “extreme emotional distress”. The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives. In a Model Penal Code jurisdiction, you could have a complete defense.
