Defenses (2024)

ModuleFive: Defenses

Legaldefenses fall into two broad categories: justifications and excuses. Bothcategories of defenses acknowledge that the criminal act was committed.Justification defenses examine the circ*mstances existing at the time the actwas committed, and excuse defenses examine the defendant’s mental state orbeliefs at the time the act was committed. Not every defense fits perfectlywithin one category or the other and legal scholars sometimes disagree aboutwhether a defense is justified or excused.[1]

Self-Defense and Defense of Others

Justificationdefenses are those where a defendant claims that the positives of the actoutweigh the negatives. If the circ*mstances are such that the defendant’sconduct, which would otherwise be criminal, is warranted, then the act may bejustified.[2] Justification defenses includeself-defense, defense of others, necessity and consent.

Self-defense

Self-defense isthe use of force towards another person when the actor reasonably believes itis necessary to protect himself against the use of unlawful force by the otherperson.[3] Tennessee, for example,allows a person to defend herself with as much resistance as necessary to preventthe offense from occurring if the offense (1) is against her person or (2) is anattempt to take or injure property in her possession.[4]

To constituteself-defense, the act must be in response to an immediate threat and accompaniedby an act expressing an intent to execute that threat. For example, in aFlorida case, a husband threatened to kill his wife from inside their home. He tookno action to carry out his threat and his wife shot him from a place of safetyoutside the home. In this case, self-defense was not established.[5] Similarly, threats offuture harm usually cannot serve as the basis for a claim of self-defense.

Still,courts have recognized an exception for systematically abused people whoundertake preemptive strikes against their abusers. This defense, colloquiallyknown as “battered women’s syndrome”, can allow a defense or, in some cases,mitigation of the crime when the battered person strikes while the abuser is asleepor during a pause of the abuse.[6]

Theforce used in self-defense must not exceed the harm threatened. For example, ifan actor shoots a would-be-burglar with a machine gun from thirty to forty feetaway while the burglar is fleeing and making no aggressive gestures towards theactor, the defense will probably not apply.[7] The law places a greatervalue on human life than property and deadly force is never justified to preventa trespass upon property in the absence of an imminent threat against the actoror his family.[8]

Onealso generally has a duty to retreat before resorting to the use of “deadly force,”which means force likely to cause death or serious injury. An actor must makereasonable efforts to withdraw from a confrontation if he can do so safely. Thus,if one has the ability to walk away from a potentially deadly altercation andchooses not to do so, he will not be able to claim self-defense if he does usedeadly force.[9]One exception to the duty to retreat is the castle doctrine. Under the castledoctrine, a person does not have a duty to retreat if attacked in her own home.[10]

Forexample, in the North Carolina case, State v. Browning, the defendant’sbrother advanced towards him with a hammer and a knife in an area of the yardabout twenty feet from his back door. The defendant fatally shot his brother.The court held that this area of the yard was close enough to the home so as toentitle the defendant to the benefit of the castle doctrine and to stand hisground.[11]

Manyjurisdictions have further limited the duty to retreat if the actor is notengaged in any unlawful behavior and is attacked in any place where he has aright to be. These laws, sometimes known as “stand your ground” laws, haveeliminated the duty to retreat when threatened with deadly force, or eliminatedit under certain circ*mstances, such as when the defendant is in his car.[12]

Defenseof Others

“Defenseof others” is a defense in a criminal proceeding when the defendant usesreasonable force against another person who is threatening to inflict forceupon a third party.[13] This defense operatessimilarly to self-defense in that the threat must be immediate, and the forceused must be proportionate. As a general rule, defense of others may only beused when the actor would be justified in using force if he were standing inthe shoes of the third party he is defending or when defendant reasonably believes that the thirdperson is in imminent danger of injury, even if the belief is mistaken.[14] The defense may not beused if the offense against the third party has already been completed. Forexample, if a father learns that his daughter was sexually abused after thefact and he then kills the perpetrator, he cannot claim defense of othersbecause the father did not have a reasonable belief that the daughter was inimminent danger of injury.[15]

Other Justifications

Necessity

Thedefense of necessity applies when someone commits a criminal act inorder to prevent a greater harm from occurring. The defense applies when

(1)the actor reasonably believes the conduct is immediately necessary to avoidimminent harm,

(2)the need to avoid the harm outweighs the harm of defendant violating the law,and

(3)there was no adequate alternative to committing the offense.[16]

Forexample, if a man drives his pregnant wife to the hospital for medical carewhile his driver’s license is suspended, the defense of necessity may apply.[17] The defense cannot beused, however, when the defendant creates the situation leading to the necessityof the criminal act (such as by intentionally injuring the person he purportsto save). It also cannot be used in cases of intentional homicide, as killing aperson is not justified to save a life except in cases of self-defense.[18]

Consent

Somecrimes, such as rape, require a lack of consent as an element of the crime. Thus,if the victim consents to the act, no crime has actually occurred. The defensecan also be used when the actor consents to a criminal act that might otherwiseconstitute assault. Consent can also be implied by participation in an activity.For example, if someone is injured during a football game the defense willapply because physical injury is a reasonably foreseeable hazard ofparticipation.[19]

Theconsent must be given intelligently and voluntarily. If someone gives consentwhile under the influence of drugs and the actor knows the person is unable toexercise a reasonable judgment, the defense of consent will not be available.[20]

Forpublic policy reasons, a person generally cannot consent to violent crimes suchas murder or serious assault likely to cause death or serious bodily injuryexcept where the benefit outweighs the risk, as in the case of a life-saving butdangerous surgery.

Excuses: Insanity and Diminished Capacity

Unlikejustification defenses, excuse defenses are not asserted to claim that the actwas warranted or proper. Excuse defenses are used when the actor’s mental stateor belief demonstrate that he should not be held responsible for the criminalact. Excuse defenses include insanity, diminished capacity, duress, mistake,infancy and entrapment.

Insanity

If adefendant is legally insane at the time he commits the crime, he may be foundnot guilty by reason of insanity. The legal definition of insanity is not thesame as the medical definition of insanity and the existence of a psychologicaldisorder or mental abnormality alone is insufficient to establish that adefendant is legally insane.[21]The insanity defense is not allowed in a few states, but those states do allowa “guilty but insane” verdict that provides for institutionalization instead ofa prison sentence. Most states allow a verdict of “not guilty by reason ofinsanity” (or similar phrasing) that also allow defendants to beinstitutionalized as criminally insane.

Thereare four tests that courts around the country use to determine if a defendantis legally insane:

1.The M’Naghten Rule, which represents thecommon law rules, requires that a defendant either (1) not understand what hewas doing at the time or (2) not understand that what he was doing was wrongbecause of a disease of the mind.

2.The “Irresistible Impulse” test asks whether ornot a defendant was unable to control his impulses which led to the criminalact because of a mental disease.[22]

3.The Model Penal Code’s test for insanityrequires that a defendant suffer from a mental disease or defect and, as aresult, lacks the capacity to appreciate the criminality of his conduct or toconform his conduct to the requirements of the law.[23] The Model Penal Code’stest is mainly a combination of the first two tests in that satisfaction ofeither test allows the defense to work.

4.The Durham Rule states that an accused is notcriminally responsible if his unlawful act is a product of mental disease or ofmental defect.[24]

Twenty-fivestates use the M’Naghten Rule and a few of those states also incorporateaspects of the irresistible impulse test into their insanity jurisprudence. Twenty states have adopted the Model PenalCode test.[25]New Hampshire is the only state that uses the Durham Rule. Even within the samejurisdictions, application of the insanity defense can be somewhatinconsistent. Consider the following case examples from New York applying theModel Penal Code test:

In onecase, a defendant successfully used the insanity defense after he stabbed ayoung boy in the chest while playing video games. At the time, the defendantwas taking antipsychotic medication and had been diagnosed with paranoidschizophrenia.[26]

Inanother case, a defendant was unable to succeed with an insanity defense andwas convicted of second-degree murder after he pushed a woman onto the subwaytracks during a psychotic episode. The defendant suffered from delusions, was schizophrenic,and had been admitted to psychiatric hospitals on numerous occasions in thepast.[27]

DiminishedCapacity

Diminishedcapacity is a distinct defense from insanity. A successful insanitydefense results in a not guilty verdict, whereas diminished capacity is adefense that often reduces the charge but does not usually absolve thedefendant of all responsibility. This defense generally applies only to specificintent crimes, where diminished capacity can negate an element of the crime.

For example, in the California case, People v. Noah,a defendant was involved in an altercation that resulted in a stabbing. He wascharged with malicious aggravated assault. Psychiatric evidence was presentedto show that the defendant, although sane, suffered from mental defectsrendering him incapable of forming the specific intent to assault with malice. Thedefendant’s diminished capacity defense could be applied to the specific intentcrime of malicious aggravated assault but could not be applied to the generalintent crime of aggravated assault. The defendant was convicted and sentencedunder the lesser charge of aggravated assault.[28]

Duress and Mistake

Duress

Duress is adefense to criminal conduct if the person acted while under the threat ofimminent serious bodily injury to himself or a third person.[29] Duress is defined as "any unlawful threat or coercion used... to induce another to act in a manner he otherwisewould not." The basis for allowing a duress defense is that the duressexperienced would overwhelm the will of an ordinary person. Thedefense requires proof of four elements: (1) threat of death or serious bodilyinjury, (2) the threat must be imminent, (3) the threat must create reasonablefear in the actor, and (4) there must be no reasonable means of escape. Implicitthreats are sometimes sufficient to raise a duress defense. In the Washingtoncase, State v. Harvill, the defendant was arrested for selling drugs. Hetestified that he received multiple aggressive phone calls from the purchasertelling him to “get the drugs.” The defendant feared that the purchaser, whohad a reputation for violence, would hurt him and his family if he did not providethe drugs. On appeal, the court held that a threat arising indirectly from thecirc*mstances could establish that the defendant acted under duress.[30]

Thedefense is not available if the defendant recklessly places himself in asituation where he will likely be subject to duress.[31] Like necessity, duress isalso not a defense to a charge of homicide.[32]

Mistake

Thereare two types of mistake defenses: Mistake of Fact and Mistake of Law. Amistake of fact can negate an element of the crime. For example, if a defendantis charged with theft, but mistakenly believed the property belonged to him,the mistake of fact defense would apply since it negates the specific intentnecessary for theft. Mistake of fact is not a defense to crimes in which themistake was a product of negligence or recklessness.

Ignoranceof the law is generally not a defense. That the defendant didn’t know the speedlimit or didn’t know that assault was a crime is no defense. For example, in theTexas case, Medrano v. State, the defendant was charged with bigamy. Hisfirst wife had deserted him over three years ago and the defendant argued thathe was operating under the belief that the marriage had become void due toabandonment. The court ruled that this was a mistake of law and could not berelied upon as a defense.[33]

Still,mistake of law defense can be allowed as a defense when the mistake negates anelement of the crime. For example, knowledge that taxes are due is an elementof the crime of tax evasion. So, ignorance that one owed taxes can be a defenseto a criminal charge of tax evasion.

Other “Excuses” Defenses

Infancy

Thedefense of infancy applies when a defendant is below the age ofresponsibility. Children may be deemed not to have the mental capacitynecessary to form criminal intent. The minimum age can vary from jurisdictionto jurisdiction. It is generally accepted that children under the age of sevencannot form criminal intent. Beyond the age of seven, the law provides a presumption that a child below the ageof responsibility (16 or 17, typically) was incapable of forming criminalintent. However, the prosecution can rebut the presumption by showing that thechild knew what he was doing at the time of the criminal act and that the childknew the act was wrong. Thus, a juvenile defendant may be held criminally responsibleeven if he is below the age of responsibility.[34] In the Nevada case, Poolev. State, for example, a thirteen-year-old defendant was convicted of second-degreemurder. That he was capable of criminal intent was shown in that he hid themurder weapon, fabricated stories to attempt to establish an alibi, claimed theshooting was accidental and testified that he knew killing was wrong.[35]

Allstates have juvenile justice systems in place to deal with young offenders. Inmost states, this means defendants under age 17, but some states set the age at15 or 16.[36] Thereare significant sentencing differences between juvenile court and criminalcourt with a much greater emphasis on rehabilitation for juveniles. Juvenilesdo not have the right to trial by jury.

Underageoffenders are sometimes tried and sentenced as adults when the alleged crime isvery serious, and/or the juvenile has serious criminal history.[37]

Entrapment

Entrapmentoccurs when a law enforcement officer induces a person to commit a crime that hewould not otherwise have committed for the purpose of instituting a criminalprosecution.[38]It applies in situations when an officer uses deception, persuasion or fraud toconvince an actor to engage in unlawful conduct. If police merely provide anopportunity, the defense will not apply. A key inquiry is whether the idea tocommit the crime originates with the defendant or with the police.

Tosucceed with a defense of entrapment, the defendant must also show no predispositionto commit the crime. This inquiry turns on whether the defendant was an “unwaryinnocent” who had no predisposition or whether the defendant was an “unwarycriminal” who readily availed himself of the opportunity police provided.[39] Consider the followingcase:

Thedefendant was charged with possessing and selling cocaine and claimed he wasentrapped. The Court found that the defendant had a predisposition to committhe crime because he made references to his supplier, cocaine was present inhis car and he used drug-trade jargon.[40] That he might nototherwise have completed this particular transaction without undercover policerequest did not matter.

Thank you for participating in LawShelf’s video-course onthe basics of criminal law. We hope this course gives you the background incrimes and criminal law systems that facilitates further study in the area andassists with your understanding of other areas of law for which criminal lawserves as a basis. Please let us know if you have any questions or feedback.