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Law Outlines Criminal Law Outlines

Self Defense Deadly Force, Reasonable Person, Initial Aggressor Outline

Updated Self Defense Deadly Force, Reasonable Person, Initial Aggressor Notes

Criminal Law Outlines

Criminal Law

Approximately 94 pages

Criminal Law with Professor Rachel Barkow at NYU School of Law.

This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....

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The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

SELF DEFENSE

  • Concern about application in practice, especially racial biases of jurors, police, prosecutor (Goetz)

Common Law MPC
Nondeadly force Justified use if reasonably believes that its use is necessary to protect himself against imminent use of unlawful force by another

3.04(1) Justified use if actor believes that its use is immediately necessary to protect himself against use of unlawful force by another
Deadly force

Justified use if actor reasonably believes (Goetz) that its use is necessary to protect himself against imminent and unlawful use of deadly force by the aggressor

Goetz:

  • Involved deadly force

  • Court rejects D's subjective "honestly believe standard, and uses objective "reasonably believe"

  • Because of legislative intent - referring to NY Penal Law

 3.04(2) Justified use if actor believes that its use is necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat

REASONABLENESS

Why objective common law standard

  • Want to prevent harm to innocent people from behavior that is based on honest but unreasonable beliefs

What does the "reasonable person in the defendant's situation" incorporate?

  • YES physical factors/anything observable

    • Physical size and appearance (because immutable)

  • NOT subjective personality factors

    • Temperament/emotional/psychological traits (because controllable)

  • UNCLEAR middle factors depend on how much control and utilitarian concerns (want to deter people prone to violence)

    • Romero: culture not part of reasonableness inquiry

    • Physical traits (concerns the brain) with a mental impulse component?

      • Ex. PTSD, traumatic brain injury, head injury

      • YES because this fundamentally changes how the brain is wired and how information and situations are processed

      • NO because still can control and manage, can seek help

    • Previously negative experiences?

      • Ex. Mugging or sexual assault or culture

      • YES because our brain is finely tuned to what happens to us; changes how the brain is wired and how information and situations are processed

      • YES/NO depending on how analogous the previous experience was

      • NO because line drawing problems - how much detail about the previous experiences to bring in (Race of the people involved?)

  • Consider whether bringing information will aggravate jury biases

    • Ex. Racial/Gender biases (ex. Bring in previous muggings, lead jury to consider racial factors)

      • BUT can give instruction to jury not to decide based on implicit biases

        • Is this actually effective?

3.09(2) QUALIFICATION (def unavailable)

If the belief of defendant is reckless or negligent and the offense only requires a reckless/negligent MR > defense is not available

DIFFERENCES BETWEEN MPC AND COMMON LAW

  1. Immediately: broader/longer timeframe (ex. Domestic violence)

  2. Believes: honest belief
Definition of deadly force

Force likely or reasonably expected to cause death or great bodily harm

  • Shooting in direction of another

[subjective] force which actor uses with purpose of causing OR which he know to create substantial risk of causing death or serious bodily harm

  • Shooting in direction of another is DF
Definition of threat of deadly force

Threat to inflict great bodily harm

Sometimes list of offenses that allow you to use DF

 Threats of death, serious bodily harm kidnapping, sexual intercourse compelled by force or threat

Deadly force summary

Common Law MPC 3.04

  1. Reasonably believe in necessity to use force

  1. Honestly believe in necessity to use force (only defense in purposeful killings)

BUT if reckless/negligent in having the belief, then not a defense to a recklessness/negligence charge

  1. Imminently necessary

  1. Immediately necessary

  1. No retreat required

Minority: retreat required (same as MPC)

  1. Can avoid necessity of using force by retreating. Retreat required if he knows he can do so in complete safety (3.04(2)(b)(ii)), unless he is at home or at workplace (unless IA or unless confronted by the coworker) (3.04(2)(b)(ii)(1))

** never have to retreat if using non-deadly force, question of retreat only comes in when using deadly force

  1. No defense if D is IA. Initial aggressor is someone whose actions creates an affray OR someone not free from fault

  1. No defense if D is IA. Initial aggressor is someone with uses deadly force with the purpose of causing death or serious bodily harm (3.04(2)(b)(i)

MPC in general gives more successful uses of deadly force (except retreat) bc more concerned about subjective culpability BUT creates too much potential for harm

REASONABLE BELIEF (see above)

t-IMMINENCE REQUIREMENT

CL - Imminence MPC - Immediately necessary

  • Norman

    • Imminence = threats of immediate danger that must be instantly met and cannot be guarded against by calling for assistance or protection of law

    • NOT inevitable danger

    • Dissent: imminent should mean impending danger - based on past experiences, N was fearing her husband could wake up at any time and threaten or kill her

  • Note: perfect self defense - reasonable and honest belief > acquittal / imperfect self defense - D provokes, V disproportionately escalates, D kills with honest and unreasonable belief that it is necessary due to imminent threat > murder mitigated to voluntary manslaughter

  • Rationale:

    • Want people to wait or get help until it is absolutely necessary to kill > deters vigilante justice

    • Value human life

    • Decreases number of homicides/deaths

    • Focus on the precise moment of D's use of force, not the future

    • Easy standard to apply for prosecutors, let prosecutorial discretion sort who should be charged

  • Criticism:

    • Overinclusive and penalizes domestic violence victims who we don’t want to impose liability on

    • Imminence is only a proxy for necessary, but necessity already in the standard

  • Expands timeframe

  • Argument: use...

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