Chapter 5

Defenses to Criminal
Joel Samaha
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
Understand how the
affirmative defenses operate
in justified and excused
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
To know and understand the
differences, of the four
elements of self-defense.
Understand the retreat rule
and appreciate its historic
Appreciate the historic
transformation of retreat and
its shaping of the stand-yourground rule and the retreat
Understand that there is no
duty to retreat from your own
home to avoid using deadly
Appreciate that the new
“Castle Doctrine” laws are
transforming the law of selfdefense.
To know that the choice-ofevils defense, choosing to
commit a lesser crime to avoid
an imminent threat of harm
from a greater crime is
That the defense of consent
represents the high value
placed on individual
autonomy in a free society.
 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
 Affirmative
defenses require the
defendant to raise the issue and put on
some evidence supporting his or her
claim (burden of production)
 Failure-of-proof defenses require the
defendant only has to raise a reasonable
doubt about the prosecution’s proof of
just one element in the crime
• Allow defendant to escape
all criminal liability if they
are successfully raised
(“they let the defendant
• Most defenses are perfect
• Insanity defense is not a
perfect defense because
even if defendant
succeeds, there will
generally be some
• Either the defense is an
imperfect defense and if
defense is successfully raised,
the defendant will not “walk”
 Diminished capacity (see Chapter
• 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 self-defense and convict
on manslaughter rather than
 Circumstances
that convince fact finders
(judges and juries) that defendants don’t
deserve the maximum penalty for the
crime they’re convicted of
Review the list of possible mitigating circumstances and
discuss a possible scenario for each that may justify
sentence an offender to a lesser penalty:
 The victim was an aggressor in the incident.
 The offender played a minor or passive role in the
crime or participated under circumstances of coercion
or duress.
 The offender, because of physical or mental
impairment, lacked substantial capacity for judgment
when the offense was committed. The voluntary use of
intoxicants (drugs or alcohol) is not a mitigating
 Other substantial grounds exist which tend to excuse
or mitigate the offender's culpability, although not
amounting to a defense.
 Defense
allows self-help due to necessity
 Not retaliation
 Not preemptive strikes
 Only good before the law when:
• The necessity is great
• It exists “right now”
• It’s for prevention only
Unprovoked Attack
• Defender cannot be the initial aggressor, cannot have provoked
the attack
• Only use force necessary to repel an imminent attack (one
that is going to happen right now)
• Defender can only use the amount of force necessary to repel
the unlawful force
• Deadly force can only be used to repel deadly attack
Reasonable Belief
• Defender has to reasonably believe (objectively reasonable)
that it is necessary to use force to repel the attack
 Facts: Hayes, the defendant, was convicted of
burglarizing a general store. The defendant’s accomplice
in the burglary, a relative of the store owners, only
participated so that the Defendant could be caught in the
act and had no actual intent to rob the store.
 Issue: Are the actions of the defendant’s accomplice in
entering the building imputable to the Defendant himself
under the theory of accomplice liability?
 Holding: No. The defendant and his accomplice did
not have the same intent in entering the building and were
therefore not accomplices for purposes of accomplice
 Facts: Goetz , defendant, shot and wounded four youths
he believed to be trying to “play with” him. Goetz
claimed that he was certain that the youths did not have
guns, but he was afraid, based on prior experiences, of
being “maimed.”
 Issue: Is the reasonable belief that a person is in
imminent danger of death or serious bodily injury
requirement for self-defense a wholly subjective test that
focuses solely on the Defendant’s state of mind?
 Holding: No. Allowing a person to justify his conduct
by self-defense simply because he personally believes
that his actions are justified cannot be a result the
legislature intended.
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
Most jurisdictions did not require
retreating, but allowed a person
to “stand one’s ground” and kill in
Retreat Rule states you have to
retreat from attack if you
reasonably believe that you’re in
danger of danger of death or
serious bodily harm and backing
off won’t unreasonably put you in
danger of death or serious bodily
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 only if you believe the
attack threatens death or serious
bodily harm
 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.”
 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.
 Facts: Stewart, the defendant, was a battered wife who
endured many years of brutal abuse at the hands of her
husband. Evidence at the trial indicated that she suffered from
“battered-wife” syndrome. Stewart hid a loaded gun under the
mattress of a spare bedroom. After another abusive incident,
Stewart went to bed with her husband and decided to shoot him
in his sleep.
 Issue: Did Stewart belief that imminent danger was
reasonable therefor actin in self defense
 Holding: No. For self-defense to be applicable, the person
must reasonably believe the threat is imminent. Stewart had
time to extract herself from the danger, thus her fear of
imminent danger was not objectively reasonable.
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
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
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
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
Laws of defense of habitation and property are
undergoing transformation
More than 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, 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
• Creates immunity from civil action and criminal prosecution for
using deadly force under the statute
 Supporters
• Public reasserting fundamental rights (to protect
homes and self)
 Gun
Control Advocates
• Creates violence by citizens, citizens have more
right to use deadly force than the police
• License to kill
• Sends wrong message to people
Law Enforcement Concerns:
• Unintended negative consequences for public safety
created by new castle laws
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
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
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
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)
 Effect
of Law Enforcement Attitudes on
• 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
 Burden on officers time
 Apathy resulting
Doubts that these laws deter crimes
• Deterrent effect depends on whether the expansion of
citizen’s rights to use deadly force is widely
• 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
Jennifer Galas, Florida
Robert Lee Smiley, Florida
Sarbrinder Pannu, Mississippi
Gas clerk-Mississippi
Review the article below regarding the “castle doctrine”
Was the Governor’s choice to veto the “castle
doctrine” bill was the right decision?
What dangers/disadvantages could come about if
the bill had not been vetoed.
What advantages could come about if the bill had
been implemented?
Ancient defense
Stems from doctrine of
Criticized as vague, and
wide open to interpretation
• Escape from prison to avoid
Choose to commit a lesser
crime to avoid the harm of
a greater crime (AKA:
general defenses of
Three part analysis of MPC
• Identify evils
• Rank evils
• Reasonably believe that the
• Destroy home to stop fire
from spreading
greater evil is imminent
MPC indicates that right
choices are life, safety, and
health over property
Defer to legislatures when
they have already ranked
 Facts: Toops, the defendant, was drinking beer with
friends at Toop's house. They decided to drive into town.
Toops' friend offered to drive due to Toops’ perceived
intoxication. While driving, they spotted a police car. The
driver panicked as he was a minor who had been
consuming alcohol. The driver jumped from the driver’s
seat into the back seat, allowing the car to become out of
control. Toops jumped into the driver’s seat in an effort to
keep the car from getting further out of control. Toops was
arrested for DUI
 Issue: Is Toops’ voluntary control of the car while
intoxicated covered by the defense of necessity?
 Holding: Yes. “Choice of evils” defense
Arises from value placed on individual autonomy
 Criminal law “hostile” to the defense of consent
 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
Situations where consent is recognized defense
No serious injury results from the consensual crime
The injury happens during a sporting event
The conduct benefits the consenting person
The consent is to sexual conduct
 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
• Authorized
 Consent must also be authorized
 A person cannot give consent for someone for whom they
are not legally responsible
 Facts: Shelley, the defendant, and Gonzalez were on
opposing teams in a pick up basketball game. Gonzalez
fouled Shelley several times and while trying to hit the
ball, scratched Shelley’s face, drawing blood. Later in the
game, Gonzalez made a move toward Shelley. Shelley
swung and hit Gonzalez, breaking his jaw.
 Issue: Did the behavior of Shelley exceed the behavior
foreseeable in the game?
 Holding: Yes. Shelley’s behavior was beyond the limit
 Facts: Hiott, the defendant, shot his friend in the eye
while playing a game of shooting each other with BB guns.
Hiott was charged with 3rd degree assault
 Issue: Is consent a defense?
 Holding: No. Consent is not a defense if activity
consented to is against public policy
 Facts: Brown, the defendant, beat his wife because she
had been drinking. The couple had an agreement Brown
would punish his wife by physical assault if she consumed
 Issue: Is consent a defense?
 Holding: No. No one has the right to beat another
even if the person may ask for it.
As you watch this brief video, reflect on the
information presented in this chapter. Then
discuss if self-defense or consent could or
could not be applied in this event.

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