Criminal Law (Self-Defense)

Created by jdpeace 

Upgrade to
remove ads

Basic Rule

A person may use force in self-defense when:
a) he reasonably believes (obecjtive) that he is in immediate (imminent) danger of unlawful bodily harm from another,
b) the use of such force is necessary to protect himself against the danger

Objective v. Subjective

Even if subjective (only believes, not reasonably believes), we still place a reasonable person in the actor's situation
If jury believes you really believed it, however, then justified
Was it reasonable for me to act, given what I believed (what would a reasonable person do in the actor's situation as he believed it to be?), not what a reasonable person would have done

MPC Self-Defense

Force is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person
The use of deadly physical force is justifiable only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force

Retreat

Traditionally no requirement of retreat
Some jurisdictions now say must retreat if he knows he can do so with complete safety
Castle Doctrine: Do not have to retreat from your dwelling, sometimes extends to place of work

Initial Aggressor Rule

Not available if initial aggressor or provoker, but if ...
He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force

MPC Use of Deadly Force Exceptions

Initial aggressor
Retreat in complete safety (or give up possession), unless in dwelling

MPC Reckless or Negligent Use of Otherwise Justifiable Force

Use is otherwise ok, but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability

Difference between MPC and Traditional Rule

No reasonableness requirement. Nonetheless, there is a reasonableness fallback. Can use the defense for purpose or knowledge crimes, but still liable for crimes involving some types of recklessness or negligence
Focuses on perception of actor about whether force is immediately necessary to protect himself rather than whether the other party is imminently planning to use force against the actor

MPC Initial Aggressor Rule

Not justifiable when:
1. The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; OR
2. The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; OR
(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force

Please allow access to your computer’s microphone to use Voice Recording.

Having trouble? Click here for help.

We can’t access your microphone!

Click the icon above to update your browser permissions above and try again

Example:

Reload the page to try again!

Reload

Press Cmd-0 to reset your zoom

Press Ctrl-0 to reset your zoom

It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.

Please upgrade Flash or install Chrome
to use Voice Recording.

For more help, see our troubleshooting page.

Your microphone is muted

For help fixing this issue, see this FAQ.

Star this term

You can study starred terms together

NEW! Voice Recording

Create Set