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it_was_self_defense.docx· It Was Self Defense, Your Honor and It’s Just Insane
Select either Self Defense or Insanity and explore that defense in detail for this written assignment You are to write a paper that is 3-5 pages in length and should properly cite your outside sources and use APA style formatting.
You should include a minimum of two outside sources, making certain to properly cite your sources.
I. “It was Self Defense, Your Honor”
On February 26, 2012, George Zimmerman shot and fatally wounded Trayvon Martin. The case is venued in Florida and is currently in process.
You should research the Zimmerman case. Should the defense of “self defense” be raised in this case? What facts and circumstances are relevant to deciding whether George Zimmerman is entitled to the defense of self-defense.
Analyze the concept of “imminent” danger and apply it to the facts of this case. If you were the judge in this case would you rule for or against an imminent danger argument? If you were the Judge or Jury in this case would you accept a defense of self-defense if asserted by Mr. Zimmerman? How might this impact the outcome of the case?
II. “It’s Just Insane”
On July 20, 2012 James Holmes became the suspected shooter in a mass theatre shooting that killed 12 people and injured 58 others.
You should research the Holmes case. Should the defense of “insanity” have been raised in this case? What facts and circumstances are relevant to deciding whether James Holmes would have been entitled to the defense of insanity.
Analyze each of the four tests for insanity. If you were the judge in this case would you rule for or against allowing a defense of insanity?
If you were the Judge or Jury in this case would you accept a defense of insanity if asserted by Mr. Holmes? How might this impact the outcome of the case?
Here are some notes down below to help you!!
Defenses to Criminal Liability: Justifications
In failure-of-proof defense, the defendant has only to raise a reasonable doubt about the prosecution’s proof of one element in the crime; it can be any element or elements.
The defenses of justification and excuse are affirmative defenses, which operate like this:
· Defendants have to “start matters off by putting in some evidence in support” of their justification or excuse.
Most affirmative defenses are perfect defenses; this means that if they’re successful, defendants are acquitted. One major exception is defendants who plead the excuse of insanity. Special hearings are held to determine if they are still insane and, if so, they are sent to maximum security mental hospitals.
Evidence that doesn’t amount to a perfect defense might amount to an imperfect defense; that is, defendants are guilty of lesser offenses.
Even when the evidence doesn’t add up to an imperfect defense, it might still show mitigating circumstances that convince judges or juries that defendants don’t deserve the maximum penalty for the crime they’re convicted of.
Self Defense
Sometimes, the government isn’t, or can’t be, there to protect you when you need it. So necessity—the heart of self-defense—allows “self-help” to kick in. Self-defense is a grudging concession to necessity. It’s only good before the law when three circumstances come together: the necessity is great, it exists “right now,” and it’s for prevention only. Preemptive strikes and retaliation are not allowed. Self-defense consists of four elements:
1. Unprovoked attack. The defender didn’t start or provoke the attack; Self-defense isn’t available to an initial aggressor; someone who provokes an attack can’t then use force to defend herself against the attack she provoked except for the withdrawal exception.
2. Necessity. Defenders can use deadly force only if they reasonably believe it’s necessary to repel an imminent deadly attack, namely one that’s going to happen right now;
3. Proportionality. Defenders can use deadly force only if the use of non deadly force isn’t enough to repel the attack. Excessive force is not allowed;
4. Reasonable belief. The defender has to reasonably believe that it’s necessary to use deadly force to repel the imminent deadly attack.
The best-known cases of justified self-defense involve individuals who need to kill to save their own lives, but self-defense is broader than that. It also includes killing someone who’s about to kill a member of your family—or any innocent person for that matter.
You can also kill an attacker whom you reasonably believe is right now going to hurt you or someone else badly enough to send you or them to the hospital for the treatment of serious injury. Some self-defense statutes go even further.
They allow you to kill someone you reasonably believe is about to commit a serious felony against you that doesn’t threaten either your life or serious bodily injury. Almost all statutes require that your belief also be reasonable.
The English common law “retreat to the wall” survived in a minority of American states. In the 19th Century, however, an important legal change occurred when the law changed to the majority stand-your-ground rule, namely that if he didn’t start the fight, he could stand his ground and kill to “defend himself without retreating from any place he had a right to be” (245).
The minority rule, the retreat rule, says you have to retreat, if you reasonably believe that you’re in danger of death or serious bodily harm and that backing off won’t unreasonably put you in danger of death or serious bodily harm.
· States that require retreat have carved out an exception to the retreat doctrine. According to this castle exception, when you’re attacked in your home, you can stand your ground and use deadly force to fend off an unprovoked attack, but only if you reasonably believe the attack threatens death or serious bodily injury (State v. Kennamore 1980, 858).
"New Castle Laws"
What if two men live in the same “castle”? Can they both stand their ground? It was these cases of cohabitants that gave birth to the rules governing domestic violence. One of the most famous and most often-cited cohabitant cases, the World War I era People v. Tomlins (1914), involved a man who killed his 22-year-old son, who had attacked his father in their cottage.
Then Judge Cardozo (later a U.S. Supreme Court Associate Justice), wrote: It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. The Connecticut Supreme Court relied on family violence to back up its creation of the cohabitant exception to the Connecticut retreat rule, even though it involved male roommates (State v. Shaw 1981).
By the late 1990s, the recognition that battered women cases fit the “real man” protecting his castle paradigm had definitely influenced the law of self-defense. Courts in several Castle Doctrine states have adopted rules that allow women to “stand their ground and kill their batterers.”
Historically, self-defense meant protecting 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, replacing it with the defense of anyone who needs immediate protection from attack.
The right to use force in the defense of one’s person, family, habitation, lands, or goods is one of the natural and unalienable rights of man. Statutes vary as to the area that the use of deadly force covers. Most require entry into the home itself.
· This doesn’t include the curtilage, the area immediately surrounding the home. Many require entry into an occupied home. Homes are special places; they’re not in the same category as our “stuff.”
· Can you use force to protect your “stuff”? Not deadly force. But you can use the amount of nondeadly force you reasonably believe is necessary to prevent someone from taking your stuff. You can’t use force if there is time to call the police.
Self-defense is undergoing an epochal transformation. Since 2005, more than forty states have passed or proposed new “Castle Doctrine” legislation intended to expand the right to use deadly force in self-defense. The first castle doctrine passed the Florida legislature in October 2005. Opponents and supporters of the castle laws see them in fundamentally different ways.
· Supporters claim them as the public reasserting fundamental rights. Gun control advocates say the laws “are ushering in a violent new era where civilians may have more freedom to use deadly force than even the police.”
In March 2007, the American Prosecutors Research Institute (APRI) held a symposium consisting of prosecution, law enforcement, government, public health, and academic experts from 12 states. The purpose? Discuss the possible unintended negative consequences for public safety created by the new castle laws.
The main concerns include officers’ use of force; operations and training requirements; increased investigation burdens; law enforcement attitudes and their impact on officer performance; and doubts that the castle laws deter crime (Jansen and Nugent-Barakove 2008, 8–9).
There’s no empirical research to help explain why so many states have adopted the “new castle laws.” But there’s plenty of speculation as to why these laws have proliferated now.
Two commonly mentioned reasons are Americans’ heightened consciousness and concern about their security since 9/11 and the lack of enough police officers to protect the public. See TABLE 5.1 Expansion of “New Castle Laws.”
Choice of Evils
The choice-of-evils defense, also called the general defense of necessity, justifies the choice to commit a lesser crime to avoid the harm of a greater crime.
The defense enjoys a long history in the law of Europe and the Americas. The defense has generated heated controversy with one side claiming that it is a justification defense and correct and the other claiming that it is so vague as to allow judges to interpret it to mean anything they wanted.
The choice-of-evils defense consists of proving that the defendant made the right choice, the only choice—namely, the necessity of choosing now to do a lesser evil to avoid a greater evil.
The Model Penal Code choice-of-evils provision contains three elements laid out in three steps:
1. Identify the evils;
2. Rank the evils;
3. Reasonable belief that the greater evil is imminent, namely it’s going to happen rightnow (ALI 1985, 1:2, 8–22).
The Model Penal Code (ALI 1985, 1:2, 8) lists all of the following “right” choices:
· Destroying property to prevent spreading fire;
· Violating a speed limit to get a dying person to a hospital;
· Throwing cargo overboard to save a sinking vessel and its crew;
· Dispensing drugs without a prescription in an emergency;
· Breaking into and entering a mountain cabin to avoid freezing to death.
The right choices are life, safety, and health over property.
Consent
Consent has nothing to do with necessity. Nevertheless, it can be a justification. The defense of consent, is based on the idea that competent adults voluntarily consented to crimes against them, and knew what they were consenting to them. The heart of the defense of consent is the high value placed on individual autonomy in a free society.
If mentally competent adults want to be crime victims, so the argument for the justification of consent goes, no paternalistic government should get in their way.
In most states, the law recognizes only four situations where consent justifies otherwise criminal conduct:
1. No serious injury results from the consensual crime;
2. The injury happens during a sporting event;
3. The conduct benefits the consenting person, such as when a patient consents to surgery;
4. The consent is to sexual conduct (Fletcher 1978, 770).
Fitting into one of these four exceptions is necessary, but it’s not enough to entitle defendants to the defense. They also have to prove that the consent was voluntary, knowing, and authorized.
Chapter 6
Defenses to Criminal Liability: Excuses
Insanity Defense
Insanity has been considered a defense to crime from Plato, to English Kings, to current day, and has been controversial throughout its history. Now—just as during the sketch of its history—the public badly misunderstands insanity, the defense of insanity, and how the defense actually works.
Mental disease (also called mental illness) and defect are medical terms; insanity is a legal term. Mental disease and mental defect are legal insanity only when the disease or defect affects a person’s reason and in a few states, a person’s will (willpower), namely the power to control your actions. It’s widely believed that not guilty by reason of insanity means that defendants go home.
You know—but very few do—that Daniel McNaughtan never went free, and neither did most of the other high profile defendants who attacked powerful people. Contrary to widespread belief, few defendants plead the insanity defense (only a few thousand a year in the U.S). The few who do plead insanity hardly ever succeed.
The few who “succeed” don’t go free. In a noncriminal (civil) proceeding, called civil commitment, courts have to decide if defendants who were insane when they committed their crimes are still insane. If they are—and courts almost always decide they are—they’re locked up in maximum-security prisons called “hospitals.”
There are four tests of the insanity defense.
1. The first is the right-wrong (McNaughtan) test. There are two elements to the right-wrong test created in McNaughtan:
. The defendant suffered a defect of reason caused by a disease of the mind; consequently, at the time of the act she did not know the nature and quality of the act (she didn’t know what she was doing), or that the act was wrong.
. Critics argues that cognition is only part of the human psyche, and can’t alone determine human behavior; the words “disease,” “defect,” “know,” and “wrong” are vague; statutes rarely give the courts much guidance, leaving the courts to “legislate” judicially on the matter.
· The irresistible impulse test focuses on defects in volition or self-control.
. According to the irresistible impulse test, we can’t blame or deter people who, because of a mental disease or defect, know that what they’re doing is “wrong” but can’t bring their actions into line with their knowledge of right and wrong.
. Only a few jurisdictions supplemented the right-wrong test with a test that takes volition into account. Some critics say the irresistible impulse supplement doesn’t go far enough.
. They argue that it should include not just sudden impulses but also conduct “characterized by brooding and reflection.” Still others maintain that it’s impossible to distinguish between irresistible impulses, and those that are simply unresisted.
· The product-of-mental illness test (Durham rule) focuses on criminal acts resulting from (are the product of) mental disease. With this test, the Court stretched the concept of insanity beyond the purely intellectual knowledge examined by the right-wrong test into deeper areas of cognition and will.
· The substantial capacity test, adopted in the MPC, is supposed to remove the objections to the right-wrong test, its irresistible impulse supplement, and the heavily weighted psychiatric-oriented Durham rule.
·
. It emphasizes both of the qualities in insanity that should determine culpability: reason and will (Schlopp 1988). The MPC test changes the McNaughtan right-wrong/irresistible impulse supplement tests in several ways. Defendants need not lack total mental capacity; the test adds the word “substantial capacity” to remove the possibility of requiring “total lack of reason cognition test.”
. The use of “appreciate” instead of “know” makes clear that intellectual awareness by itself isn’t enough to create culpability; emotional (affective) components of understanding are required. The phrase “conform his conduct” removes the requirement of a “sudden” lack of control. The word “wrong” was changed twice, first to “criminality” and then finally to “wrongfulness.” Some critics claim that “substantial impairment” is “vague,” and that it allows too many defendants to escape criminal responsibility.
. The strongest criticism is that it “continues the faults of the McNaughten rules and the irresistible impulse tests by providing separate knowledge and control tests; in doing so, this test seems to rest on a bifurcated rather than an integrated view of the human personality” (524).
States vary as to who has to prove insanity and how convincingly they have to do so. Federal law required the government to prove Hinckley’s sanity beyond a reasonable doubt.
In 1984, the federal Comprehensive Crime Control Act (Federal Criminal Code and Rules 1988, § 17[b]) shifted the burden of proof from the government having to prove sanity beyond a reasonable doubt to defendants having to prove they were insane by clear and convincing evidence.
Most states don’t follow the federal standard; they call insanity an affirmative defense. As an affirmative defense, sanity and therefore responsibility are presumed. To overcome the sanity presumption, the defense has the burden to offer some evidence of insanity. If they do, the burden shifts to the government to prove sanity. There’s a trend in favor of shifting the burden to defendants and making that burden heavier.
Diminished capacity is a failure-of-proof defense. It is an attempt to prove that the defendant is incapable of the necessary intent of the crime charged and is therefore innocent of that crime but may be guilty of a lesser one. Diminished responsibility is different, it is a defense of excuse, or lowered responsibility. Most states reject diminished capacity of both types. In practice, diminished capacity and diminished responsibility apply only to homicide.
Excuse of Age
The common law divided children into three categories for the purpose of deciding their capacity to commit crimes:
· Under 7 Children had no criminal capacity;
· Ages 7–14 Children were presumed to have no criminal capacity, but the presumption could be overcome;
· Over 14 Children had the same capacity as adults.
Today, statutes determine when young people can be convicted of crimes. These statutes come in several varieties.
1. One type of statute identifies a specific age.
2. Another type of statute grants exclusive jurisdiction to juvenile courts up to a certain age but makes exceptions for a list of serious crimes.
3. A third type of statute simply states that juvenile court jurisdiction is not exclusive (LaFave 2003a, 487).
All states have established juvenile justice systems to handle juvenile delinquency. Every state has a statute that provides for the transfer of juveniles to adult criminal court. The technical term for this transfer is “waiver to adult criminal court,” meaning the juvenile court gives up its jurisdiction over the case and turns it over to the adult criminal court.
Waivers to adult court come in three varieties:judicial, prosecutorial, and legislative. By far, the most common is judicial waiver.
Duress can be an excuse when individuals are threatened and forced to commit a crime or be killed. In most states, duress is not a defense to murder.
There are four elements in the defense of duress:
1. nature of the threat;
2. immediacy of the threats;
3. crimes the defense applies to;
4. degree of belief regarding the threat.
Voluntary intoxication is not a defense. What we have said so far applies only to voluntary intoxication. Involuntary intoxication is an excuse to criminal liability in all states.
· Involuntary intoxication includes cases in which defendants don’t know they are taking intoxicants or know but are forced to take them. Involuntary intoxication applies only under extreme conditions. Alcohol isn’t the only intoxicant covered by the defense of intoxication. In most states, it includes all “substances” that disturb mental and physical capacities.
Defense of Entrapment
All societies rely on entrapment even though it violates a basic purpose of government in free societies. For a long time, U.S. courts rejected the idea that entrapment excused criminal liability.
The earlier attitude was based on indifference to government encouragement to commit crimes. Attitudes have shifted from indifference to both a “limited sympathy” toward entrapped defendants, and a growing intolerance of government inducements to entrap otherwise law-abiding people (Marcus 1986).
The practice of entrapment arose because of the difficulty in enforcing laws against consensual crimes, such as drug offenses, pornography, official wrong-doing, and prostitution. There’s no constitutional right not to be entrapped. Entrapment is an affirmative defense created by statutes.
There are two main types of entrapment defenses.
1. The majority of state and all federal courts have adopted a subjective test of entrapment. The subjective test of entrapment focuses on the predisposition of defendants to commit crimes. According to the test, the defense has to prove the government pressured the defendants to commit crimes they wouldn’t have committed without the pressure.
2. A minority of courts follow an objective test of entrapment. The objective test focuses not on the predisposition of defendants but instead on the actions that government agents take to induce individuals to commit crimes. According to the objective test, if the intent originates with the government and their actions would tempt an “ordinarily law-abiding” person to commit the crime, the court should dismiss the case even if the defendant was predisposed to commit the crime.
Syndrome Defenses
Since the 1970s a range of syndromes, describing affected mental states, has led to novel defenses in criminal law.
Some syndromes are (and should be) taken seriously as excuses. For example, some women have claimed the battered woman syndrome to justify killing spouses in self-defense, even though they weren’t in imminent danger. Occasionally, women also have used the premenstrual syndrome (PMS) to excuse their crimes.
There are three obstacles to proving the PMS defense (Carney and Williams 1983):
Defendants have to prove that PMS is a disease, but little medical research exists to prove that it is; the defendant has to suffer from PMS, but rarely do medical records document the condition;the PMS has to cause the mental impairment that excuses the conduct.
