Students' Page > Criminal Law > Unit 7

Burden of Proof and Defenses

• In all criminal cases, the government has the burden of proof.
• This means that the prosecution has to prove all of the elements of criminal liability that we discussed previously.
• Defenses allow the defendant to escape criminal liability even when the government has proven the elements beyond a reasonable doubt.

Three Types of Defenses

• Alibi: Defendants prove that they were in a different place than the scene of the crime when it was committed, so they couldn’t have committed it.
• Justification: Defendants accept responsibility for their actions but claim that what they did was right under the circumstances.
• Excuses: Defendants admit that what they did was wrong but argue that under the circumstances they were not responsible for what they did.

Principle of Justification

• According to the principle of justification, some circumstances justify what would otherwise be crimes.
• Justified conduct doesn’t deserve punishment because it is not blameworthy.
• Example: It is wrong to blame (and punish) someone who kills in self defense—under the circumstances the killing was right, so the defendant is not culpable.

Justification v. Excuses

"A justification speaks to the rightfulness of the act; an excuse, whether the actor is accountable for a concededly wrongful act."

Affirmative Defenses

• Most justifications and excuses are affirmative defenses.
• Affirmative defenses require that defendants carry some burden in presenting evidence to support it.
• In all jurisdictions, Defendants bear the burden of production—this means that defendants have to "start matters off by putting in some evidence in support of the defense.

Burden of Persuasion

• Some jurisdictions require the defendant to go further than meeting the burden of production; they must meet the burden of persuasion.
• This means that they have to do more than get things started; they have to prove their defenses by a preponderance of the evidence—more than 50% of the evidence proves justification or excuse.

Perfect and Imperfect Defenses

• Perfect defenses lead to an outright acquittal—the defendant goes free.
• Sometimes, evidence that doesn’t amount to a perfect defense is enough to convict on a lesser charge, like when provocation reduces murder to manslaughter.
• These are known as imperfect defenses.

Insanity Defense

• The defense of insanity is different from other defenses.
• Defendants who successfully plead insanity don’t walk, at least not right away.
• Special insanity hearings follow insanity verdicts.
• The outcome of most of these hearings sends most insane defendants to secure hospitals until they regain their sanity.
• Often, defendants never regain sanity; they remain committed to mental institutions for life.
• Mitigating Circumstances
• Evidence that doesn’t amount to either a perfect or imperfect defense might still show mitigating circumstances that convince judges or juries that defendants don’t deserve the maximum penalty.
• Example: Words, no matter how insulting, cant reduce murder to manslaughter in most states—but they might get you life rather than death.

Motive

• Motive can also influence punishment, or sometimes even conviction itself.
• Motive refers to the reason why individuals commit crimes.
• Criminal law distinguishes between motive and mens rea.
• Mens rea tells us what the person did; motive tells us the reason why.
• Suppose a burglar breaks into a house with the intent to steal food because he is hungry.
• In this example, the intent (mens rea) is to steal; the motive is hunger.
• Such conduct, while still culpable, may be sentenced lightly by judges—and juries may refuse to convict or convict on a lesser offense.

Self-defense

• Self-defense is the use of force to prevent attacks against individuals, their homes, and their property.
• Under the rule of law, the government has a monopoly on the use of force.
• This monopoly carries with it a duty to protect citizens from attacks.
• Sometimes agents of government aren’t there when they’re needed.
• Self-defense allows individuals to use force to help themselves when the government can’t do it for them.

What is NOT Self-defense

• Self-defense, as the term suggests, is a defensive action.
• Those who rely on it have to act right now because if they don’t they’ll be attacked.
• Self-defense doesn’t include warding off some future attack by volleying a preemptive strike.
• Nor does self-defense justify retaliation in the form of "pay back" for a past attack.
• In short, self-defense is about protective action required and taken right now.
• Preemptive strikes come too soon and retaliation comes too late to count as self-defense.
• Elements of Self-defense
• The law of self-defense tells us under what conditions individuals can ignore the government’s monopoly on force and rely on self-help.
• These conditions strictly limit the use of violent self-help.

Common Law Self-defense

"A man may repel force by force in defense of his person, habitation, or property, against one or many who manifestly intend and endeavor, by violence or surprise, to commit a known felony on either. In such case he is not obliged to retreat, but may pursue is adversary until he finds himself out of danger; and if in a conflict between them, he happens to kill, such killing is justifiable.

The right of self-defense in cases of this kind is founded in the law of nature; and is not, nor can be superseded by any law of society…to make homicide excusable on the ground of self-defense, the danger must be actual and urgent."

Four Modern Elements

1. Reasonable belief in the danger of an attack that will cause death or serious bodily injury.
2. The danger has to be to a nonaggressor, that is, someone who has not provoked the attack in the first place.
3. The danger has to be imminent, meaning immediate or on the verge of happening now.
4. The force used to repel the attack can only be the amount necessary to repel the attack; that is, the force can’t be excessive.

Ordinarily, self-defense isn't available to someone who starts a fight or otherwise provokes an attack.

However, if attackers completely withdraw from fights they start or attacks they otherwise provoke, they can defend themselves against an attack by their initial victims.

Belief in Danger

• The most common case of self-defense involves someone who kills to save his or her own life.
• But self-defense is broader than that.
• It also includes killing someone who is about to kill a member of your family, or any innocent person for that matter.
• Also, you are not limited to killing someone who is going to kill you someone else.
• You may kill anyone who you believe is about to hurt you or someone else badly enough to send you or them to the hospital.
• This is what the "serious bodily injury" found in most self-defense statutes means.
• Most states require not only that you believe that you need to use force, but that a reasonable person in the same situation also would have believed that force was necessary.

Imminent Attacks

• Only the danger of imminent attacks, that is, attacks that are either happening or are going to happen right now, justifies the use of force.
• It is sometimes argued that present danger (danger that could happen at any time but isn't going to happen right now) is enough.
• Example: Suppose an attacker breaks off an attack to go get help in finishing you off and you shoot her as she runs off. The danger is present, but not imminent.
• The model penal code allows self-defense to fend off present danger.
• Some states have adopted this, but most still require that the danger be imminent.

The Retreat Doctrine

• What if you can avoid an attack by escaping? Do you have to retreat?
• The retreat rule says you have to retreat if at all possible.
• But only if you reasonably believe that backing off won’t unreasonably put you in danger of death or serious bodily harm.

The Stand-your-ground Rule

• The stand-your-ground rule says that if you didn’t start the fight, you can stand your ground and kill.
• Of course, you still have to reasonably believe that you are in danger of death or serious bodily harm.
• Different values underlie these rules:
  • The retreat rule puts a premium on human life and discourages injuring or killing another person, even an assailant.
  • The stand-your-ground rule (sometimes called the "real man" doctrine) is based on the belief that retreat forces innocent people to take a cowardly and humiliating position.
• Most states follow the stand your ground rule.

The Castle Exception

• Stats that require retreat have carved out an exception to the retreat doctrine known as the Castle Exception.
• The castle exception states that when you’re attacked at home, you can stand your ground and use deadly force to fend off an unprovoked attack.
• But again, only if you reasonably believe that the attack threatens death or serious bodily injury.
• The problem arises when we try to determine where the Home starts and ends—do sidewalks, garages, doorways, etc., count?

Defense of Others

• Historically, self-defense meant protecting both yourself and the members of your immediate family.
• Although several states still require a special relationship, the trend is in the opposite direction.
• Many states have abandoned the special relationship requirement altogether; other states have it but have expanded it to include lovers and friends.
• The "others" have to have the right to defend themselves before someone else can claim the defense.
• This is important in cases involving abortion rights protesters.
• In one case, protesters argued that they had the right to prevent abortions by violating the law because they were defending the right of an unborn child to live—this does not work as a legal defense.

A.C.A. § 5-2-606. Use of physical force in defense of a person

(a) A person is justified in using physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force that he reasonably believes to be necessary. However, he may not use deadly physical force except as provided in § 5-2-607.

§ 5-2-607. Use of deadly physical force in defense of a person

(a) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

 (3) Imminently endangering his or her life or imminently about to victimize the person as described in § 9-15-103(a)(2), from the continuation of a pattern of domestic abuse. For the purposes of this section "domestic abuse" shall be that described in § 9-15-103(a).

(b) A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety:

   (1) By retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, or if he is a law enforcement officer or a person assisting at the direction of a law enforcement officer; or

   (2) By surrendering possession of property to a person claiming a lawful right thereto.

A.C.A. § 5-2-608. Use of physical force in defense of premises

Execution of Public Duties

• Public executioners throw switches to electrocute condemned murders; soldiers shoot and kill enemy soldiers.
• What keeps these actions from being criminal?
• Because all the actors are doing their jobs, and the deprivations they cause were justified because they were carried out as public duty.
• These examples illustrate the justification called execution of public duty.
• This values underlying this justification are clear: once the state legitimately formulates laws, citizens must obey them; the law takes precedence over citizens’ property, liberty, and even their lives. Therefore, the value in enforcing the law ranks higher than individual property, liberty, and life.

The Police and Public Duty

• The public duty defense arouses most controversy over the power of the police to kill suspects.
• A furious debate has ranged over whether, and under what circumstances, the police may lawfully kill fleeing suspects.
• Some say the defense should cover officers who "need" to kill to make arrests.
• Others insist that only protecting officers’ or other innocent people’s lives justifies killing.
• At one time, state laws authorized police officers to kill when necessary to effect felony arrests, including those for property crimes.
• In 1985 the US SC restricted the constitutionality of police use of deadly force under the Fourth Amendment search and seizure clause (see Tennessee v. Garner, 471 US 1.)

A.C.A. § 5-2-603. Execution of public duty

(a) Conduct which would otherwise constitute an offense is justifiable when it is required or authorized by law or by a judicial decree or is performed by a public servant or a person acting at his direction, in the reasonable exercise or performance of his official powers, duties, or functions.

Resisting Unlawful Arrest

• Can individuals resist illegal arrest by force?
• The answers have fluctuated over time.
• Historically, the common law of both England and the US favored the right to resist arrest.
• Then, beginning in the 1960s, states started to curb the right to resist arrest.
• By 2000, the majority of states had limited the right to resist arrest.
• The issue is still alive because of a longstanding mistrust of government in the United States.
• Two policies support restrictions on the use of force against police officers:
• Encourage obedience to police.
• Encourage nonviolent remedies, such as suing in private law suits.

§ 5-2-612. Use of physical force in resisting arrest

   A person may not use physical force to resist an arrest, whether the arrest is lawful or unlawful, by a person who is known, or reasonably appears, to be:

   (1) A law enforcement officer; or

   (2) A private citizen directed by a law enforcement officer to assist in effecting an arrest.

(Takes away the justification)

The Choice-of-Evils Defense

• Also known as the principle of necessity, has a long history.
• Throughout this long history, the defense has generated heated controversy.
• Early case records show that the defense was used successfully as early as 1500, when a prisoner pleaded necessity to a jail break when he escaped a fire that burned down the jail.

This defense requires three distinct steps:

1. Identify the evils
2. Rank the evils
3. Choose the lesser evil to avoid the greater evil.

§ 5-2-604. Choice of evils

(a) Conduct which would otherwise constitute an offense is justifiable when:

   (1) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and

   (2) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.

(b) Justification under this section shall not rest upon considerations pertaining to the morality and advisability of the statute defining the offense charged.

(c) If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Same as the MPC?

The language of this section differs to some extent from that of Tentative Draft No. 8 of the Model Penal Code and is more limiting, but the basic principles of the defense are similar to those espoused by that draft. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).

Consent

• The defense of consent is based on the value of individual autonomy in a free society.
• If a mentally competent adult wants to be a crime victim, so the argument for the defense of consent goes, no paternalistic government should interfere with his or her choice.
• Consent may make sense in the large context of individual freedom and responsibility, but the criminal law is hostile to consent as a justification for committing crimes.
• Individuals can take their own lives and inflict injuries on themselves, but they can’t authorize others to kill them or beat them.
• Three exceptions to the general rule:

1. No serious injury results from the consensual crime.
2. Injury happens during a sporting event.
3. Conduct benefits the consenting person, such as when a doctor performs surgery.

• Not only is consent limited to these three circumstances, but it also has to be both voluntary and knowing.
• That is, the consent must stem from the consenting party’s own free will without either compulsion or duress.
• And the person consenting has to be competent to consent; youth, intoxication, or mental abnormality disables the consent.
• Consent obtained by fraud or deceit also renders the consent ineffective.
• Finally, forgiveness after the commission of the crime is not consent.

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