Criminal Law Outline - Defenses, Necessity, Duress

  1. **Abridged Corporate Liability/Fraud****Self-Defense MPC Abridged**

    • If D was not the initial aggressor, D may use deadly force against V if he believes that such force is immediately necessary on the present occasion to combat an unlawful deadly assault by V if…
      • D has retreated, and V continues to pursue him.
      • D knows of no safe place to retreat.
      • Even if D could have retreated, if D is in him home or place of work (and V is not in his place of work).
    • If D was the initial, non-lethal aggressor but did so without the purpose of provoking a deadly conflict, D may still use deadly force in all circumstances above.
    • If D was the initial, lethal aggressor (had intent to cause death or great bodily harm), D may only use deadly force in self-defense if…
      • D withdraws from the conflict.


    1. Categories of Defenses
      1. Justifications (negates the social harm of an offense)- Conduct that under ordinary circumstances is criminal is justified under special circumstances when the action is not wrongful and is even, possibly, affirmatively desirable.
        1. Rationale behind exculpation
          1. Public Benefit Theory
            1. The prohibited conduct is justified because society benefits from the actor's conduct.
            2. The benefit to society is not incidental to some self-interested goal of the actor; it is the underlying motivation for the actor's conduct.
          1. Moral Forfeiture Theory
            1. The prohibited conduct is justified if it does not result in a socially undesirable outcome.
            2. Based on the view that people possess certain moral rights that society recognizes through criminal law, but which may be forfeited (such as right to life).
            3. Right may be forfeited through violating the right of another. Focuses on the wrongdoing of the "victim"/aggressor.
          1. Moral Rights Theory
            1. The prohibited conduct is justified because the actor has a right to protect a particular moral interest.
            2. Provides actor with an affirmative right to protect his threatened moral interest.
            3. Focuses on the interests of the defendant/actor raising defense.
          1. Superior Interest (Lesser Harm) Theory
            1. The prohibited conduct is justified because the interests of the defendant outweigh those of the person he harms.
            2. The interests/values the parties seek to enforce are balanced.
            3. Ex. D trespasses by entering V's house to avoid a tornado.
              1. Justified because protection of human life is more important than property protection.
              2. Consistent with utilitarian goal of promoting individual conduct that reduces overall harm.
              3. Consistent with non-utilitarian goal of weighing moral rights and identifying the superior one.


    1. Excuses (negates the moral blameworthiness of the actor for causing the harm) -Although the actor has harmed society, he should not be blamed or punished for causing that harm.
      1. Rationale behind exculpation
        1. Deterrence Theory
          1. Excuses are recognized in the criminal law because they identify the circumstances in which conduct is undeterrable.
          2. Thus, punishment is wrong because it is inefficacious.
        1. Causation Theory
          1. A person should not be blamed for her conduct if it was caused by factors outside her control.
          2. D should be excused if he commits a crime because of mental illness or a coercive deadly threat since he is not to blame for being ill or the victim of coercion.
          3. However, he is to blame and punishable if the conduct was caused by self-induced intoxication or by any other factor for which he is responsible.
        1. Character Theory
          1. Punishment should be proportional to a wrongdoer's moral desert, and that desert should be measured by the actor's character.
          2. Excuses should be recognized by law in those circumstances in which bad character cannot be inferred from the offender's wrongful conduct.
        1. Free Choice (Personhood) Theory
          1. A person may be properly blamed for his conduct if, but only if, he had the capacity and fair opportunity to function in a uniquely human way, i.e., to choose whether to violate the moral/legal norms of society.
          2. Free choice exists if, at the time of the conduct, the actor has the substantial capacity and fair opportunity to…
            1. Understand the facts relating to his conduct
            2. Appreciate that his conduct violates society's mores
            3. Conform his conduct to the dictates of the law.


    1. Self-Defense
      • A non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by the other person.
      1. General Elements of the Defense
        1. Necessity
          1. Force should not be used against another person unless, and only to the extent that, it is necessary.
          2. Requires that the threat of harm/force to be imminent.
        1. Proportionality
          1. D is not justified in using force that is excessive in relation to the harm threatened.
            1. May use non-deadly force to repel an imminent non-deadly threat.
            2. May use non-deadly force to repel an imminent deadly threat.
            3. May use deadly force to repel an imminent deadly threat.
        1. Reasonable Belief
          1. D is justified in killing a supposed aggressor if the D's belief in this regard if objectively reasonable even if appearances prove to be false.
          2. Subjective component
            1. Jury must determine that the D subjectively believed that he needed to use force to repel an imminent unlawful attack.
          1. Objective component
            1. Jury must find that the D's belief in this regard must be one that a reasonable person in the same situation would have possessed.
      1. Deadly Force Issues
      • A person who is not an aggressor is justified in using deadly force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful deadly force by the other party.
        1. Deadly Force Defined- force intended or likely to cause death or grievous bodily injury
        2. Non-Aggressor Requirement
          1. Defining Aggressor
            1. An aggressor is the one whose affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences.
            2. Thus, the non-aggressor does not have to be totally faultless in the situation.
              1. Ex. D calls V a jerk. V takes out a gun and menaces D with it. D is justified in killing V (assuming the other requirements are met) even though D was not entirely free from fault in the conflict.
            1. Factors to determine who is the aggressor…
              1. A person is an aggressor even if he merely starts a non-deadly conflict.
              2. The first person who uses force is not always the aggressor (as in above example).
              3. A person is not an aggressor if he engages in conduct, although provocative, to which he is entitled.
                1. Ex. D, a police officer, comes upon a fight and threatens to use force against the combatants if they do not stop. His conduct cannot reasonably be interpreted as an aggression.
              1. Determining who is an aggressor is ordinarily a matter for the jury.
          1. Removing the Status of Aggressor
            1. The initial aggressor may purge himself of that status and regain the right of self-defense.
              1. For deadly aggressors, the only way to regain the right of self-defense is by withdrawing in good faith from the conflict and fairly communicating this fact, expressly or impliedly, to his intended victim.
                1. Ex. D initiates a deadly attack on V. V responds with sufficient force that D is fearful for his own life. If D runs and V pursues him, D is not entitled to act in self-defense.  D is guilty of murder if he kills V in "self-defense" unless D puts V on actual or reasonable notice that D is no longer is a threat to V.
              1. For non-deadly aggressors, courts are split on how they regain the right of self-defense.
                1. Most courts provide that the original non-deadly aggressor immediately regains his right of self-defense when the victim of the non-deadly assault responds with deadly force.
                  1. Ex. D wrongfully attempts to slap V. V pulls out a knife and attempts to kill D. D may immediately kill V in self-defense.
                1. Some courts do not automatically restore the right of self-defense to  the initial aggressor. The initial aggressor is not entitled to use deadly force against V unless he avails himself of an obviously safe retreat, if one exists.
                  1. Ex. D wrongfully attempts to slap V. V pulls out a knife and attempts to kill D. D must retreat, if possible, to regain right to self-defense. If D does not retreat and was able to, will be liable (though possibly of manslaughter, not murder).


    1. Necessity Requirement (Retreat)
      1. Courts are split on retreat…
        1. Slim majority apply the "no retreat" rule.
          1. A non-aggressor is permitted to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety.
          2. Based on macho reasons. Men don't retreat.
          3. Also based utilitarian argument that innocent people, if required to retreat might be killed while fleeing.
        1. Slim minority apply the retreat rule.
          1. A non-aggressor threatened by deadly force must retreat rather than use deadly force if he is aware that he can do so in complete safety.
            1. Practical effect of this requirement is that a person under attack is rarely compelled to retreat, especially when the aggressor has a gun; there is almost never a place of complete safety to which one can turn when confronted by a gun.
            2. Even if there is a place of complete safety, the person is apt to be unaware of it because of the attendant excitement of the situation (subjective test only about knowledge of place of retreat).
          1. Based on principle that all human life, even that of the aggressor, should be preserved if possible.
      1. Castle Exception to the Retreat Rule
        1. A non-aggressor is not ordinarily required to retreat from his dwelling, even though he knows he could do so in complete safety, before using deadly force in self-defense.
          1. Some courts view the rule as a form of the defense of habitation.
          2. Others view the home as a person's final sanctuary from external attack; thus, D can retreat no farther.
        1. Implications for domestic violence
          1. Imposing a duty to retreat from the home is bad for domestic violence victims.
          2. Most courts hold that the assailant's status as a co-dweller is irrelevant.
    1. Imminence
      1. A person who wishes to use force in self-defense must reasonably fear that the threatened harm is imminent.
        1. Harm is found to be imminent if it will occur immediately, at the moment of danger, or is pressing and urgent.
        2. Harm is not imminent if the aggressor threatens to harm another person at a later time.
      1. Imminence is being increasingly seen as just a component of necessity.
        1. Thus, some argue that if it is necessary for a person (like a battered spouse) to use deadly force before a threat is imminent, she should be justified in doing so. 
      1. Imminence and "preemptive strikes"
        1. Some feel that if death or serious bodily harm in the relatively near future is a virtual certainty and the future attack cannot be adequately defended against when it is imminent and if there really are no reasonable alternatives, traditional self-defense doctrine out to justify the preemptive strike.
          1. Really an issue of relative scopes of the imminence and necessity requirements.
          2. Ex. State v. Norman
            1. D had been abused spouse of V for 20 years. After some particularly terrible events, D killed V in his sleep.
            2. Held (at middle court) that a jury could find that D reasonably believed that the force was necessary at the time. Battered spouse D does not have to wait until the deadly attack occurs to use self-defense.
            3. Held (at upper court) that the threat of harm to D was not imminent; thus, D was not justified in using self-defense.


    1. Objective/Subjective Dichotomy
      1. In determining whether D's self-defense claim is justified, the jury should hold D to the standard of the "reasonable person in the actor's situation."
      2. Juries are to think of a reasonable person in D's situation with some of D's knowledge and characteristics…
        1. Knowledge D had about the V.
        2. Physical attributes of all people involved.
        3. Any prior experiences D had which could provide a reasonable basis for a belief that another person's intentions were to harm or that the use of deadly force was necessary.
      1. Ex. State v. Wanrow
        1. Small woman with broken leg killed large, drunk, child-molester V in her home.
        2. Held that the use of male pronouns was invalid in the jury instructions and that the relative size and strength of the parties involved should be taken into account in the reasonableness inquiry.
      1. Issues to discuss
        1. A reasonable person should only consider allegations and information that are based on reliable information.
          1. Race, age, sex, clothing, body language in order to measure dangerousness?
          2. Left up in the air by MPC and most statutes; left for the jury to decide.


    1. Self-Defense and Risks to Innocent Bystanders
      1. Most courts apply a "transferred-justification" doctrine - D's right to self-defense transfers from the intended to the actual victim.
      2. However, if D, acting justifiably in self-defense against an aggressor, fires a weapon R or N…
        1. Some courts may hold D guilty of manslaughter/negligent homicide of a bystander. (MPC, see below)
          1. Supported by moral-forfeiture doctrine that the death of an innocent bystander is unjustified because he is not guilty of any culpable act.
          2. Also supported by utilitarian reasoning in that if D's self-protective behavior creates a risk of harm to others, it may be more socially desirable for him to choose some less dangerous means of defending himself.
        1. Other courts provide an absolute defense in such circumstances.
          1. Supported by moral right theory that one has a natural right to protect one's own life even if innocent people are unintentionally harmed.


    1. MPC and Self-Defense (3.04)
      1. Force in General
        1. Subject to limitations, a person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise  of unlawful force by the other individual on the present occasion.
          1. Divergent from common law in two main ways…
            1. Drafted in terms of D's subjective belief in the need to use force; not necessary that this belief be reasonable .
              1. However, 3.09 limits this; if D is R or N in regard to the facts relating to the justifiability of his conduct, the justification defense is unavailable to him in a prosecution for an offense for which R or N establishes culpability.
              2. Ex. D kills V because D negligently believes that V is about to kill him. Self-defense is available for any charge of I, K, or R killing V. D can be charged with N killing V.
            1. Disposes of the imminence requirement and replaces it with "immediately necessary."
              1. Authorizes self-defense sooner than common law. Issue is not how soon V's force will be used but whether D's need to use defensive force exists immediately.
              2. Ex. Abusive husband V tells wife D that he is going to bedroom to get a gun to shoot her. D picks up knife and stabs V when he turns to get the gun. Self-defense would likely fail under common law imminence requirements. Justified under MPC because it was immediately necessary, could not afford to wait.
      1. Deadly Force
        1. Deadly force is unjustifiable unless D believes that such force is immediately necessary to protect himself on the present occasion against (1) death, (2) serious bodily injury, (3) forcible rape, or (4) kidnapping.
          1. Kidnapping doesn't seem to fit with the others. Drafters of the MPC said that the appropriateness of including kidnapping as a justification for self-defense will depend on state's kidnapping statute. (violence required?)
        1. Limitations on Deadly Force
          1. Aggressors
            1. A person cannot use deadly force in self-defense if he, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.
            2. Ex. If D unlawfully starts a non-lethal conflict, D does not lose his privilege of self-defense if V escalates it into a lethal conflict.
            3. Ex. If D unlawfully starts a lethal conflict, D may regain the right to self-defense if he breaks off the struggle. If V continued after D, this would be considered a separate engagement.
          1. Retreat
            1. A person may not use deadly force against an aggressor if he knows that he can avoid the necessity of using such force with complete safety by retreating.
              1. Castle-exception - Retreat is not necessary if D would have to retreat from his home or place of work.
                1. Exceptions - Retreat from work or home is required if (1) D was the initial aggressor and wishes to regain his right of self-defense or (2) even if not the aggressor, if D is attacked by a co-worker in their place of work.
                2. No requirement for co-dweller to retreat; good for battered spouses.
      1. Self-Defense and Innocent Bystanders
        1. If person justifiably uses force against an aggressor, but uses such force in a R or N manner in regard to the safety of an innocent bystander, the justification defense is not available to him in a prosecution for R or N crime against bystander.
        2. Convictions for this are hard to obtain.
          1. In order to show R or N as to a bystander, prosecutor must prove that D took an unjustifiable risk to others in protecting himself (since unjustifiability is an element of both R and N).
          2. Commentary to MPC: "In assessing a charge of R or N, D's justifying purpose (self-defense) must be given weight in determining whether the risk to innocent persons was sufficient to establish a gross deviation from proper standards of conduct."


    1. Duress (as an excuse defense)
    • An affirmative defense where a D is excused if the prohibited conduct was done because of coercion by a third party to use unlawful force against D or another.


    1. Duress Generally
      1. D will be acquitted of any offense except murder if the criminal act was committed under the following circumstances… (common law formulation)
        1. Another person threatened to kill or seriously injure D or a third party (particularly a family member).
          1. Threat must be of death or serious bodily harm; property damage, economic hardship, or damage to reputation is not sufficient.
          2. Threat must typically be directed at D or a family member.
        1. D reasonably believed that the threat was genuine.
        2. The threat was "present, imminent, and impending" at the time of the criminal act.
          1. "The harm must be likely to occur so quickly that there is no realistic way for the actor to escape the situation."
        1. There was no reasonable escape from the threat except through compliance with the demands of the coercer. AND
          1. As implied by the wording ("coerce"), the threat must come from a human being.
          2. If duress stands, coercer will be liable for the coerced victim's conduct.
        1. The actor was not at fault in exposing herself to the threat.
          1. Ex. If D voluntarily joins a criminal organization that he knows or has reason to know is likely to subject him to coercive threats at a later time, he will not be permitted to claim the defense if that foreseeable event arises.
      1. Rationale for Duress (as an excuse)
        1. Utilitarian Arguments
          1. When a person is at the will of some coercive power, the threat of criminal punishment is ineffective.
          2. The coercing party, not the victim of the coercion, possesses the true criminal disposition.
        1. Retributive Arguments
          1. A coerced actor does not deserve to be punished for his actions.
            1. Sometimes this argument is based on the premise that D lacks mens rea. This is incorrect; duress actually creates the intent to commit the crime rather than negating it. Only exception to this is when specific intent is at issue in the statute.
          1. The coerced actor does not possess a fair opportunity to exercise her will to act lawfully. 
    1. Duress as a Defense to Homicide
      1. Some states hold that duress is not a defense to an intentional killing
      2. Other states recognize an imperfect duress defense which mitigates murder to manslaughter.
      3. In felony-murder prosecutions, there is a split…
        1. Some states provide that a D coerced to commit a felony, during which D or an accomplice unintentionally kills the victim, may raise the duress defense as to the felony and, thus, is not liable for felony murder.
        2. Other states disallow the defense in all murder prosecutions, regardless of D's mens rea regarding the death.
    1. Duress (and Necessity) and the Prison Escape Problem
      1. Neither necessity or duress perfectly covers this problem.
        1. Necessity claims will fail in jurisdictions that limit the defense to emergencies created by non-human forces.
        2. Duress claims don't work because they are usually triggered by coercing the actor to commit a criminal act. No one in this situation commands D to flee the prison.
      1. The two defenses send different messages…
        1. Acquittal on the basis of necessity implies that it is a right, or at least tolerable, for a prisoner to escape in certain circumstances.
        2. Acquittal on the basis of duress implies only that D should not be blamed for fleeing.
      1. A necessity claim may be harder to prove than a duress claim.
        1. The balancing of evils in a necessity claim will weigh heavily against D (order in the community/prison, prior criminal record).
        2. In duress cases, jurors do not weigh evils; the inmate's prior criminal record is not relevant evidence. The determinative factor should be whether the conditions in the prison were so extreme and immediate that the jurors could reasonably imagine fleeing themselves under similar circumstances.
      1. Liability for those who assist in the escape
        1. If the prisoner raises a valid necessity claim, there should be no liability for those who aid in the escape since D would be justified in assisting in the escape.
        2. If the prisoner raises a valid duress claim, there should be liability for those who aid in the escape since  D aided the prisoner's wrongful-but-excusable act.
      1. Liability for those who resist the escape
        1. If the defense is necessity either…
          1. Both the prisoner and the guard are allowed to use force or
          2. The guard is not allowed to use force to resist the escape. Prisoner would be justified in using reasonable force, if necessary, to prevent resistance by the guard.
        1. If the defense is duress, guard is justified in preventing prisoner from committing the wrongful act of escaping and can use reasonable force to prevent the escape.
    1. MPC and Duress (2.09)
      1. Definition…
        1. Duress is affirmative defense to unlawful conduct by D if…
          1. D was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon D or another person. AND
          2. A person of reasonable firmness in D's situation would have been unable to resist the coercion.
        1. The defense is unavailable if D R placed himself in a situation in which it was probable that D would be subjected to coercion.
        2. If D N placed himself in the situation, defense is valid for all offenses except those where N is sufficient to establish culpability.
      1. Broader than common law duress…
        1. Abandons common law requirement that D's unlawful act be a response to an imminent deadly threat. Test becomes whether a person of reasonable firmness would have been unable to resist.
        2. May be raised in murder prosecutions.
        3. The threatened person does not have to be D or member of D's family but still must be physical (not property) harm.
      1. Would cover the prisoner escape scenario since the defense applies if the coercer's use of threat of unlawful force causes the coerced party to perform a different criminal act, one not ordered by the coercer (assuming that a person of reasonable firmness in D's situation would have escaped).


    1. Necessity (as a justification defense)
    • Defense of last resort - Legitimizes technically illegal conduct that common sense, principles of justice, and/or utilitarian considerations convince us is justifiable, but which is not dealt with by any other justification defense.
      1. Generally, D is justified in violating a criminal law if these 6 factors are satisfied…
        1. D must be faced with clear and imminent danger.
          1. Ex. D, a convicted felon, took a gun away from V after V unjustifiably fired the weapon in the air and threatened D. D prosecuted for felon in possession of a firearm. D was entitled to instruction on necessity since the danger to him was clear and imminent.
          2. Ex. D furnished clean needles to drug addicts to reduce spread of AIDS. D charged with possession and distribution of needles. Held D was not entitled to instruction on necessity because the harm (spread of AIDS) was not imminent in any given case in which the needles were exchanged.
        1. D must expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid.
          1. Ex. D inmate flees confinement because of a fire in the prison. D has chosen an action that will be effective in avoiding the danger (death by fire).
        1. There must be no effective legal way to avert the harm.
          1. Ex. Nelson v. State
            1. D got his truck stuck in mud. Several people offered to help, D refused. Instead, stole equipment from state to get his truck out. Damaged equipment. Held that necessity was not valid in part due to the fact that there was a legal way to avoid the harm (call a tow truck, accept help).
        1. The harm that the D will cause by violating the law must be less serious than the harm he seeks to avoid.
          1. D's actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.
          2. D's decision must, in fact, be correct according to the facts as he reasonably perceived them.
        1. Lawmakers must not have previously anticipated a choice of evils and determined the balance to be struck between the competing values in a manner in conflict with D's choice. AND
          1. Ex. D man not defend illegal use of marijuana for medical purposes if the legislature has previously weighed the choices and decided rejected D's choice.
        1. D must not have substantially contributed to the emergency or wrongfully placed himself in a situation in which he would be force to engage in criminal conduct.
          1. Ex. D recklessly starts a fire. D cannot then burn down a house to create a fire line to prevent the further spread of the fire.
      1. After these elements are satisfied, some jurisdictions further limit the defense…
        1. Necessity defense may be limited to emergencies created by natural (not human) forces.
          1. Ex. D may trespass to avoid a tornado, but not to escape an armed robber.
        1. Necessity defense may not apply in homicide cases.
        2. Necessity defense may be limited to protection of persons and property (not protection of reputation or economic interests).


    1. MPC and Necessity (3.02)
      1. Definition…
        1. A person's conduct is justified if…
          1. D believes that his conduct is necessary to avoid harm to himself or another.
          2. The harm to be avoided by D's conduct is greater than that sought to be avoided by the law prohibiting D's conduct. AND
          3. No legislative intent to exclude the conduct in such circumstances plainly exists.
        1. If D was R or N in bringing about the situation requiring a choice of harms, defense of necessity is not available in a prosecution for any offense for which R or N is sufficient to establish culpability.
      1. Broader than common law approach to necessity.
        1. Rejects imminence requirement.
        2. D doesn't automatically lose if he helped bring about the emergency, only if can be prosecuted R or N.
        3. Not limited to emergencies created by natural forces.
        4. Not limited to physical harm of persons or property.
        5. May be employed in homicide prosecutions.