Courts, and by extension society, must deal with how to bring justice properly to those who commit harmful acts but are at the same time free of some level of culpability. Although a defendant has confessed or has otherwise been found to have committed a criminal act, he or she may be absolved of punishment to some degree because of some justification, which in legal terms is referred to as an affirmative defense. Both justifications and excuses are referred to as affirmative defenses. The main reason defendants use an affirmative defense is to provide the court and jury with evidence showing that the circumstances surrounding their otherwise criminal actions release them from criminal liability; in other words, their actions were legally justifiable or excusable. For example, the preservation and defense of self or of others, as well as actions that protect the public, are all considered theoretically central to why there are justification defenses. Those defendants who satisfy all of the necessary elements of a justification defense will likely be acquitted (perfect defense), while those who present cases that do not satisfy the necessary elements may result in some reduction of liability (imperfect defense), resulting in a lesser charge.
Importantly, in normal criminal trials, the prosecution has the “burden of production,” which means it has the duty to produce evidence and prove (burden of persuasion) to the jury that the defendant is guilty of the act(s) in question beyond a reasonable doubt. In affirmative defenses, however, this burden of production shifts to the defense (as well as the burden of persuasion), who must convince the court (often by a preponderance of the evidence) to accept evidence that the defendant’s actions were somehow justified through one or more of the following defenses:
- Mitigating circumstances
- Defense of others
- Defense of the home
- Execution of public duties
- Resisting unlawful arrests
Many justifications, as listed above, can be used as a defense to explain why someone did what they did. However, some justifications are more likely to be used than others, such as self-defense or defense of home. Additionally, whether a justification is able to be used may be up to the court and the statutes allowed within that state. To make it more complicated, a justification in one state may not be a justification in another state. For example, about 18 states have enacted laws that allow an individual to “stand their ground” if attacked and to use force in self-defense. These laws eliminate one’s “duty to retreat,” which in some of the other nonstand-your-ground states requires victims to retreat (sometimes even in their own home) to the furthest reasonable place or distance before resorting to a use of force. Thus, a criminal case with similar facts may be treated entirely differently depending on the state or jurisdiction in which it is heard.
Both justifications and excuses are sometimes considered interchangeable but are much different than mitigating circumstances, which are factors that may be considered in addition to a justification defense in order to help explain why someone did what they did in the moment. Justifications are also different from excuses in the fact that there is a component that involves self-protection or the need of law enforcement to respond with force or deadly force given the situation.
Most justification defenses are not new concepts; they began in early English law with some justifications requiring pardon from the Crown. Much like today, justifications were laid out through statutes, with the earliest statute being Statute of Gloucester in 1278, which made some homicides by either accident or self-defense justifiable. By 1532 this type of justification was so common that the statute was amended to exempt the forfeiture of defendant’s goods and then expanded to allow juries to find the defendant not guilty, which ultimately led to contemporary self-defense and justifiable homicide defenses. Justifications are their own element and do not necessarily need all of the elements of criminal liability, such as harm or culpability, to be used—justifications in resisting imminent crime are necessary in apprehending criminals, preventing crimes, or defending oneself. Misperceptions may be difficult to overcome if the crime is perceived imminent when not; however, if deemed reasonable the misperceptions can still be justifiable and are seen as aiding the preservation of social order. Justifications can change over time as the understanding of society and culture changes—as seen with the justification of battered woman syndrome compared to excuses that can only change as the understanding of disorders, mental illness, and the like evolve.
Understanding what justifications are and how they are used during a criminal trial can be aided by taking a look at prior cases where these defenses were raised. Some criminal cases that cite justification as a defense reach as far back as the mid-19th century, while others are more recent. These cases are heard in local courts, courts of appeals or state supreme courts, circuit courts, and even the U.S. Supreme Court.
The defense of self is recognized in every U.S. state. It is also likely to be the one justification defense that most people can think of. As a society Americans have generally agreed that repelling force by using force is just and if we fail to recognize this basic human right, the Americans would place our society at further risk. Generally speaking, in order for a defendant to successfully justify using force, and in some instances deadly force, they must satisfy some basic elements. These elements include reasonable belief, which means that the defendant, as well as any “reasonable” person, could look at the situation and come to the conclusion that force was indeed required to defend oneself. Second, the reasonable person would need to also agree that the force used in defense of self was immediately necessary in order to prevent the immediate infliction of harm. Third, the force used in defense by the victim needs to be proportional and not excessive to the level of offensive force or threat of force displayed by the aggressor. Fourth, as was briefly discussed above, in most instances the defender cannot resort to use of deadly force if they can retreat. This line, however, is blurred when the aggressor is using deadly force or the defendant is in his or her home or workplace when the attack occurs.
In the 1989 case People of the State of New York v. Ivory Miller, the defendant was facing a charge of second-degree murder with weapon enhancements—along with a charge of third degree criminal possession of a weapon. The defendant was alleged to have shot the victim outside the local grocery store. The prosecutor moved to discharge the third-degree possession of a weapon, and the defendant requested he have the opportunity to be charged with the lesser offense of manslaughter based on justification (self-defense); however the prosecutor denied and the court upheld the charges as filed. The court noted the prosecutor has the responsibility of disproving a justified or ordinary defense beyond a reasonable doubt. The defendant’s request for a justification in this case was allowable under the New York statute, as an affirmative use of force is permissible under certain circumstances—the use of such a justification being not to deny or take away the criminal act or element of the act but to distinguish the use of force as a privilege under certain circumstances making the conduct then completely lawful. If such a certain circumstance presents itself then the state has the responsibility to address such an effect with a finding of lesser included offenses.
The jury was presented with three possible verdicts well within legal grounds on which to deliberate: “guilty,” “not guilty,” or “not guilty by reason of justification.” This can also allow for the verdict of “not responsible by reason of mental disease or defect.” The court laid out the explanation of the verdicts as follows: “guilty” meant the jury found the prosecution proved its case beyond a reasonable doubt that the defendant and only the defendant could have committed the crime; “not guilty” meant the prosecution failed to prove its case on any one or more of the elements beyond a reasonable doubt that the defendant had committed the crime; and “not guilty by reason of justification” meant the prosecution failed to disprove beyond a reasonable doubt the justification of the defense that the defendant had a legitimate reason for committing the crime.
Many juries have found that the justification for self-defense of the home falls under the idea of having the right to protect oneself in one’s own home—thus an extension of the justification of self-defense. However, another aspect of self-defense of the home can be found within the Second Amendment of the Bill of Rights that guarantees the right to bear arms. In the 2008 decision of District of Columbia, et al., v. Dick Anthony Heller, the U.S. Supreme Court found, based on the Second Amendment, that the District of Columbia could not ban someone from registering and possessing a gun within their home for the purpose of self-defense. The court determined that the amendment is not unlimited in regard to the possession of guns but does allow the use of guns by non-militia for the purpose of protection.
The necessity defense (similar to duress) arises in situations where a person’s actions, otherwise criminal, are justified because they were carried out to prevent significant harm. The necessity defense is often likened to a balancing or choice of evils. A lost hunter caught in a blizzard has to choose between illegally breaking into a cabin to seek shelter or being caught in the storm and suffering hypothermia or even death. Most people would agree that the unlawful entry in this example was justified because of the dire nature of the situation.
In the famous case The Queen v. Dudley and Stephens (1884), seamen Thomas Dudley and Edward Stephens, another man named Brooks, and a young man named Richard Parker, were stranded on a lifeboat after being caught in a storm 1,600 miles from the Cape of Good Hope. They had no supply of water and no supply of food, except two one-pound tins of turnips. On the fourth day they caught a small turtle, which lasted them a few days, and this was the only food they had up to the 20th day.
On the 18th day, Dudley and Stephens spoke to Brooks as to what should be done if no food was found and suggested that someone should be sacrificed to save the rest, but Brooks dissented, and young Richard was not consulted. The men also spoke of their families and suggested it would be better to kill Richard. A day later, Dudley proposed that if there was no vessel in sight by the next morning the boy should be killed. That next day, no vessel appeared, and Dudley made signs to Stephens and Brooks that the boy be killed. Stephens agreed to the act, but Brooks dissented from it. Dudley, with the assent of Stephens, went to the boy and slit his throat with a knife, killing him. The three men fed upon the body and blood of the boy for four days and on the fourth day were rescued alive (but close to death) by a passing vessel. The main issue here was: were the actions of these men justifiable under the necessity defense? The defendants in this case were sentenced to death, but were released within six months of their incarceration.
In conclusion, there are many ways to be found guilty and convicted of a crime, but there are few ways to explain when and why that crime can legally be committed. To explain such is to provide a justification to the offense provided the facts and elements for the case. Justifications many times have been confused with exceptions, but are separate in their usage within the court, especially as mitigating factors. Justifications are nothing new in common law or case law as they have been around since the 1200s when the Crown began allowing accidental and self-defense as justifications to homicide. Justifications have come a long way since then, as they have gained support in federal and state law. Justifications have also come a long way in how the court can provide a verdict, whether as an added option to guilty, not guilty, not guilty by reason of justification, or by allowing a defendant to provide an Alford plea (the strategy of pleading guilty to a lesser charge or in exchange for a lighter sentence).
- Greenawalt, Kent. “Distinguishing Justifications From Excuses.” Law and Contemporary Problems, v.49 (Summer 1986). http://scholarship.law.duke.edu/lcp/vol49/iss3/6 (Accessed September 2013).
- Horowitz, Donald L. “Justification and Excuse in the Program of the Criminal Law.” Law and Contemporary Problems, v.49 (Summer 1986). http://scholarship.law.duke.edu/lcp/vol49/iss3/7 (Accessed September 2013).
- Stewart, Hamish. “The Constitution and the Right of Self-Defence.” University Of Toronto Law Journal, v.61.4 (2011).
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