Chapter Five
Defenses to Criminal
Liability:
Justifications
Learning Objectives
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That the law of self defense is undergoing
major transformation.
That defendants are not criminally liable if
their actions were justified under the
circumstances.
That defendants are not criminally liable if
they were not responsible for their actions.
Understand how the affirmative defenses
operate in justified and excused conduct.
Learning Objectives
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Appreciate that self-defense limits the use of deadly
force to those who reasonably believe they are faced
with the choice to kill or be killed right now.
To know and understand the differences, of the four
elements of self-defense.
Appreciate the historic transformation of retreat and
its shaping of the stand-your-ground rule and the
retreat rule.
Understand the retreat rule and appreciate its
historic transformation.
Learning Objectives
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Understand that there is no duty to retreat from
your own home to avoid using deadly force.
Appreciate that the “New Castle Doctrine” laws are
transforming the law of self-defense.
That the choice to commit a lesser crime to avoid
an imminent threat of harm from a greater crime is
justified.
That the defense of consent represents the high
value placed on individual autonomy in a free
society.
Defenses to Criminal Liability
• Behavior that is justifiable or excusable does not
lead to criminal liability
• Justifications and excuse comprise many of the
defenses to criminal liability
• Justification defenses - defendants admit
responsibility but claim that what they did was
right under the circumstances
• Excuse defenses -defendants admit that what
they did was wrong, but claim they are not
responsible
Proving Defenses in Court
• Affirmative defenses require the defendant to
raise the issue and put on some evidence
supporting his or her claim (burden of
production)
• Some jurisdictions also require the defendant
to bear the burden of persuasion (convince
the jury to some degree of certainty—
generally preponderance of evidence)
Perfect and Imperfect Defenses
• Perfect defenses
– Allow defendant to escape all criminal liability if
they are successfully raised (“they let the
defendant walk”)
– Most defenses are perfect defenses
– Insanity defense is not a perfect defense because
even if defendant succeeds, there will generally be
some commitment
Perfect and Imperfect Defenses
• Imperfect defenses
1. Either the defense is an imperfect defense and if
defense is successfully raised, the defendant will
not “walk”
1. Diminished capacity (see Chapter 6)
2. OR a perfect defense which is not completely
fulfilled
• Example: Swann v. United States
– Jury could consider evidence that Swann honestly but
unreasonably believed he needed to use deadly force in selfdefense and convict on manslaughter rather than murder
Justification Defenses
• Execution of Public Duties (not in text)
– Use of force by police, soldiers, and executioners
implementing a Death Sentence
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Self-Defense
Defense of Others
Defense of Property
Defense of Habitation
Choice of Evils (aka Necessity)
Consent
Self-Defense
• 3 Circumstances are Required:
1. Necessity is Great
2. Threat is “Now”
3. Prevent Death or Serious Physical Injury
• Defense allows self-help due to necessity only
– Not retaliation
– Not preemptive strikes
4 Self-Defense Elements
1. Unprovoked Attack
–
Defender cannot be the initial aggressor, cannot have provoked the
attack
2. Necessity
–
Only use force necessary to repel an imminent attack (one that is
going to happen right now)
3. Proportionality
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Defender can only use the amount of force necessary to repel the
unlawful force
Deadly force can only be used to repel deadly attack
4. Reasonable Belief
– Defender has to reasonably believe (objectively reasonable) that it is
necessary to use force to repel the attack
Self-Defense Elements (continued)
• Unprovoked Attack
– Initial aggressor cannot use force to defend self
against attack that he or she provoked
– Withdrawal Exception
• If attacker completely withdraws from the attack they
provoke, they can defend themselves against attack by
their initial victims…the right can be revived!
• Example: State v. Good
Self-Defense Elements (continued)
• Necessity
– Refers to the imminent danger of attack
– Defender can use force when needed to protect
against imminent unlawful force against either
themselves or someone else
Self-Defense Elements (continued)
• Proportionality
- Most statutes allow using deadly force to protect
self from deadly force or force that could cause
serious injury
- Some states allow using deadly force to kill
someone you believe is about to commit a serious
felony against you even if its not life threatening
Self-Defense Elements (continued)
• Reasonable belief that using force was
required
– Not sufficient that the defender honestly believed
that it was necessary to use force (subjective
standard)
– Almost all statutes require that defender
reasonably believed it was necessary (objective,
reasonable person standard)
• Example: People v. Goetz
Summary of People v. Goetz (1986)
holding
• Court examined the New York statutes and reiterated that the
law of self-defense allowed a person to use deadly force only
if he reasonably believed that the other person was using or
about to use deadly physical force.
• The issue was whether the grand jury instructions given by
the prosecutor correctly stated NY law. The court ruled they
did.
• It reiterated that the jury had to decide, first, if Goetz himself
believed that deadly force was necessary to avert the
imminent use of deadly force. Then the jury needs to decide
if a reasonable person in light of all the circumstances could
have had those beliefs.
Limitations to Self-Defense: Retreat
• Retreat doctrine requires that a person retreat
(if they can do so safely) before using force
• English common law principle which survived
in some American jurisdictions
• Most jurisdictions did not require retreating,
but allowed a person to “stand one’s ground”
and kill in self-defense
Retreat
• Even in those jurisdictions that required a
person to retreat if they could safely do so,
there was an exception if they were in their
own home
• Castle exception (to the retreat rule) provides
that when you are attacked in your own home
you can stand your ground and use deadly
force to fend off unprovoked use of deadly
force against you
Castle Exception and Cohabitants
• In those states that have the retreat rule and the
castle exception to the retreat rule, an issue arises
when the attacker and the defender are cohabitants
sharing the same “castle”
– Example: People v. Tomlins (1914): case involved a man
killing his 22-year-old son in their cottage. The court held
that the general rule that a person need not retreat in his
or her own home applies whether the attacker is a
cohabitant or an outsider.
State v. Shaw (1981)
• A tenant and landlord sharing a common
residence argued, withdrew to their
respective bedrooms and returned with
firearms to the kitchen.
• Shaw fired 5-6 shots and his landlord 3 times,
and was convicted of assault, which he
appealed on the basis of self-defense, and the
right to stand his ground in his dwelling.
• The court disagreed and upheld the conviction
Summary of case holding
• Court disputed whether Connecticut really
intended to allow cohabitants to stand their
ground against one another when it created a
exception to the rule requiring cohabitants to
retreat
• The court recognized the implications of the
castle doctrine to domestic violence, and took
the position that the privilege does not exist
for one individual in a place which is also the
dwelling of the other.
State v. Thomas (1997)
• Thomas, suffering from battered woman
syndrome, used the victim’s handgun to kill
her live in boyfriend during a confrontation,
and was convicted of Murder with a firearm.
• Thomas appealed on the basis of castle
doctrine, allowing her the right to stand her
ground in self defense.
• The court agreed that Thomas had no duty to
retreat in a situation with a cohabitant.
Summary of case holding
• The court stated, “The victims of ….(domestic violence) have
already “retreated to the wall” many times over and therefore
should not be required as victims of domestic violence to attempt
to flee to safety before being able to claim the affirmative defense
of self-defense……There is no rational reason for a distinction
between an intruder and a cohabitant when considering the policy
for preserving human life where the setting is the domicile and
accordingly we hold that there is no duty to retreat from one’s own
home before resorting to lethal force in self-defense against a
cohabitant with an equal right to be in the home.”
– Note: dissents pointed out that there were more opportunities for deadly
violence in domestic settings, and believed retreat should be required.
Defense of Others
• Historically limited to members of immediate family
• Trend is in opposite direction
• Many states allow defense of anyone who needs immediate
protection from attack
• Others have to have the right to defend themselves before
someone else can claim the defense
– Ex: State v. Aguillard—abortion rights protestors could not
claim defense of others, because the “others” could not
legally defend themselves (Abortion Legal)
Defense of Home
• Historically defense was limited to nighttime
invasions
• Modern statutes limit use of deadly force to cases
where it is reasonable to believe intruders intend to
commit crimes of violence against occupants
• Defense generally didn’t cover the curtilage of the
home (area immediately surrounding home)
• Many statutes required entry into occupied home
(no spring guns, dangerous dogs)
Defense of Property
• Can use force, but not deadly force, to protect
property and prevent it from being taken from
you
• Defense based on necessity
• Can run after and take back what someone
has just taken from you
New Castle Laws
• Laws of defense of habitation and property are undergoing
transformation
• 40 states have proposed new legislation expanding law of
“self-defense”
• Florida Personal Protection Law
– Sets out standard conditions of self defense, defense of others, then
creates a presumption or reasonable fear of great bodily harm when
others enter dwelling or car
– Also allows other to stand their ground in any place (not limited to
dwelling) and meet force with force, including deadly force
– Also creates a presumption that anyone forcefully entering a dwelling
intends to commit an unlawful act involving force or violence
– Creates immunity from civil action and criminal prosecution for using
deadly force under the statute
New Castle Laws (continued)
• Supporters
– Public reasserting fundamental rights (to protect
homes and self)
• Opponents
– Creates violence by citizens, citizens have more
right to use deadly force than the police
– License to kill
– Sends wrong message to people
New Castle Laws (continued)
• Law Enforcement Concerns
– Unintended negative consequences for public
safety created by new castle laws
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Officers use of force
Operations and training requirements
Increased investigation burdens
Law enforcement attitudes and their impact on officer
performance
– Doubt that these laws deter crime
New Castle Laws (continued)
• Officer’s use of force
– Imbalance between civilians right to use deadly
force and officers rights creates dangerous
situations
– No knock search implications
– Presumption of reasonable danger provisions
means civilians can shoot officers entering to
serve warrant
New Castle Laws (continued)
• Operations and Training Requirements
– Difficult for officers to determine whether the
new law is properly invoked due to newness of
law and lack of cases interpreting law
– Need continued training where and when castle
expansion might apply
New Castle Laws (continued)
• Increased Investigative Burdens
– Prior to law: investigate dangerous force
imminent, duty to retreat
– Now: investigate self-defense claims in many more
cases
• Proving the negative (that the owner did not under a
potential claim of castle doctrine)….rather than
disproving a claim of self-defense (because of the
presumption in the law)
New Castle Laws (continued)
• Effect of Law Enforcement Attitudes on
Performance
– Practical concerns: officers sentiment that dead
victims got what they deserved leads to failure to
carry out more intensive investigation
– Expanded area of no retreat law means that there
will be more defendants invoking castle exception
• Burden on officers time
• Apathy resulting
New Castle Laws (continued)
• Doubts that these laws deter crimes
– Deterrent effect depends on whether the expansion of
citizen’s rights to use deadly force is widely publicized
– Deterrent effect depends on whether would-be criminals
appreciate that citizens are armed and might kill or injure
them
• People might feel safer because they have right to defend
themselves, or they may feel less safe because they don’t
know who might be carrying weapons
• May lead to more people carrying and using weapons
New Castle Laws (continued)
• Why are these statutes proliferating?
– Didn’t see this response with Colorado’s make my
day laws
– American’s fear and concern since attacks of 9/11
– Lack of police officers to protect public as seen in
the hurricanes in Florida and floods in Louisiana
and Mississippi
New Castle Laws (continued)
• Cases:
– Jennifer Galas, Florida
– Robert Lee Smiley, Florida
– Sarbrinder Pannu, Mississippi
– Gas clerk-Mississippi
– Joe Horn, Texas
– Harold Fish, Arizona
Choice of Evils – The General Principle
of Necessity
• Ancient defense
• Stems from doctrine of necessity
• Criticized as vague, and wide open to
interpretation
• Examples
– Escape from prison to avoid fire
– Destroy home to stop fire from spreading
Choice of Evils
• Choose to commit a lesser crime to avoid imminent
danger through the harm of a greater crime
• Three part analysis of Model Penal Code:
1. Identify evils
2. Rank evils
3. Reasonably believe that the greater evil is
imminent
• MPC indicates that right choices are life, safety, and
health over property
• Defer to legislatures when they have already ranked
evils
Queen v. Dudley and Stephens (1884)
• Dudley and Stephens killed Brooks while lost
at sea in a lifeboat. They were without food,
for days, and survived by eating Brooks for the
4 days following, when they were rescued.
• Dudley and Stephens pleaded the defense of
necessity, claiming that they had families,
Brooks did not, and if they did not do so, they
all would have succumbed to starvation.
• The court disagreed.
Summary of case holding
• Court found that there was no absolute or
unqualified necessity to preserve one’s own
life (can’t rank one life above another)
People v. Gray, et al (1991)
• The defendants were arrested when they refused to
move from a bike path in protest of a city decision to
open the lane to cars
• The defendants stipulated to the facts, and claimed
the defense of necessity, as blocking the path was a
lesser evil than the harm to the environment and
people than opening the lane to vehicle traffic.
• The prosecution agreed not to offer any objection to
the defense.
• The trial court agreed, and acquitted the Defendants.
Summary of case holding
• The court painstakingly went through the law on necessity
and the issue of legislative preemption of a claim of necessity.
• Ultimately the court found that defendants could raise the
defense, that it had not been legislatively preempted.
• Prosecution failed to disprove that defendants had a
reasonable belief in a grave and imminent harm.
• Defendants did not appear to have an alternative
• Defendant’s did offer sufficient evidence of reasonable belief
in a causal link between their behavior and ending the harm
State v. Ownbey (2000)
• Ownbey was charged with growing marijuana
• Ownbey claimed that because he suffered
from PTSD, growing marijuana was a matter of
medical necessity, and he sought to raise a
choice of evils defense.
• The court disagreed, holding that the defense
of only available where the legislature has not
balanced the competing values and made a
choice
People v. Dover (1990)
• A lawyer was cited for speeding (80 in a 50
zone) and claimed that speeding was the
lesser evil than the harm that would result
from his tardiness to a legal hearing.
• On the basis of a state statute, the court
dismissed the violation, and the prosecution
appealed.
• The state supreme court disagreed, as the
evidence in the record was insufficient as to
the type and nature the injuries v his conduct
State v. Celli (1978)
• Celli and his friend were hitchhiking, became
stiff and cold…fearing frostbite, they broke
into the only building nearby, and took refuge
(Warmth and Food) and were subsequently
arrested for Burglary
• Celli appealed on multiple grounds, including
a defense of necessity
• The case was reversed on other grounds…the
court did not have to decide the defense of
necessity issue…what do you think?
Summary of case holdings: necessity
• Necessity defense only available in situations
where the legislature has not already made a
determination of values. (no necessity for
possessing marijuana) (Ownbey)
• Insufficient evidence to show that the driver
was speeding because of an emergency (just
another court appearance) (Dover)
• What do you think about Celli?
Consent
• Arises from value placed on individual
autonomy
• Criminal law “hostile” to the defense of
consent for committing crime
• Some behavior requires lack of consent as an
element of the crime (e.g., rape)
• Some individuals are unable, because of
statute, to give consent
– Minors, legally incompetent individuals,
intoxicated individuals for example
Consent (continued)
• 4 Situations where consent is recognized
defense
1. No serious injury results from the consensual
crime
2. The injury happens during a sporting event
3. The conduct benefits the consenting person
4. The consent is to sexual conduct
Consent (continued)
• To be valid the defense of consent
must be:
1. Voluntary
2. Knowing and
3. Authorized
Consent (continued)
• To be valid the defense of consent must be
– Voluntary
• Consent given was the product of free will, not of force,
threat of force, promise or trickery
• Forgiveness after the fact doesn’t turn involuntary
consent into voluntary consent
– Knowing
• The person consenting must understand what he or she
is consenting too
• Person can’t been too young, under the influence, or
insane to understand
Consent (continued)
• To be valid the defense of consent must be
– Authorized
• A person cannot give consent for someone for whom
they are not legally responsible
State v. Shelley (1997)
• After being fouled several times during a
basketball game by an aggressive player,
Shelly punched the other player in the face.
• Shelly appealed, on the basis of the other
players “consent” to the hazards of the game
• The court disagreed, as the conduct was “not
foreseeable” within the realm of player
consent…perhaps more in line with an
argument of self-defense
State v. Hiott (1999)
• Hiott and his friend were playing with BB guns,
shooting at one another when the friend was struck
in the eye.
• Hiott was charged with 3rd degree assault, and
claimed “Consent to sporting events”, comparing the
activity among boys to rugby, football, dodge ball
and UFC.
• The appellate court disagreed, stating that shooting
BB guns at each other is not a generally accepted
game or athletic contest, there are no rules; and the
activity is not characterized by the use of protective
equipment
State v. Brown (1976)
• Mr. Brown was arrested for the severe beating of his
wife, who was an alcoholic.
• Mr. Brown claimed that they had an agreement, that
his wife consented to a beating if she drank alcohol
or became intoxicated. The trial court did not allow
the defense of consent
• The appeals court disagreed…appreciable injury is
not permitted...it would “otherwise threaten the
dignity, peace, health and security of our society”
State v. Fransua (1973)
• Fransua was drinking heavily in a bar and told
another patron “If I had a gun, I would shoot you”.
The other patron left, returned with a loaded gun,
and said “There’s the gun. If you want to shoot me,
go ahead” and Fransua obliged.
• Fransua was convicted of aggravated battery, and
appealed on the basis of consent.
• The appeals court rejected the appeal on the
absurdity of permitting such conduct between
parties…contrary to public peace, order and safety
in society.
Summary of case holdings re: Consent
• Although consent may be a valid defense in
the circumstance of a sporting event, the
behavior consented to must be to contact that
is contemplated within the rules of the game
and that is incidental to the furtherance of the
goals of that game. Thus, Shelley can’t claim
defense for hitting Gonzales, because hitting is
not part of the rules of basketball. (State v.
Shelley)
Summary of case holdings re: Consent
• Shooting one another with BB guns is not a generally
accepted game or athletic contest recognized as appropriate
for the defense of consent. (Hiott)
• The state’s ability to protect the health and welfare denies the
defendant of his right to claim his wife consented to his
assaulting her. As a matter of law, no one has the right to beat
another, even upon request of the victim. (Brown)
• The public has a strong and overriding interest in limiting the
defense of consent and preventing and prohibiting acts such
as aggravated battery (Fransua)