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Defenses Outline

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This is an extract of our Defenses document, which we sell as part of our Criminal Law Outlines collection written by the top tier of Cuny School Of Law students.

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2. Introduction Categories of Defenses

1. Failure of Proof

1. The defendant claims that the prosecution failed to prove all elements of an offense

2. Justifications

1. There were circumstance surrounding the commission of the crime that justify a defendant's actions. What was done was for the greater good.

3. Excuse

1. What the actor did was wrong, but they will be punished. Their actions were not the result of their free will.

4. Non-Exculpatory Public Policy

1. Although an actor is guilty, they will not be punished for public policy reasons. Burden of Proof Patterson v. New York

1. Who has the burden of proof for EED?

2. Although the prosecution must prove every element of a crime beyond a reasonable doubt, "Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person."

3. The burden is on the defense to, by a preponderance of the evidence, present a defense of EED.

4. SS 25.00 Defenses; burden of proof (NYPL)

1. When a "defense," other than an "affirmative defense," defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

2. When a defense declared by statute to be an "affirmative defense" is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence. Self-Defense U.S. v. Peterson

1. Persons had shown up at defendant's house and tried to take things from his car. Peterson went into house, got gun, came back out and said "if you take on more step, I will shoot you." Actor took a step, Peterson shot him.

2. Self-defense may not be used as a defense where the defendant was the provocateur. Unless the provocateur has withdrawn and communicated this withdrawal. People v. Goetz

1. Bernie Goetz case.

2. The issue in the case was the section of the self-defense statute that said that deadly physical force could be used when one "reasonably believes..." Is reasonableness to be determined based on whether a belief is reasonable objectively or subjectively?

3. We use an objective standard, considering situations as the defendant


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4. believed them to be: "As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances." State v. Wanrow Dispute over facts: generally, a man was suspected of molesting children in the area, was killed (possibly during a confrontation) Can a jury only take into account what occurs at the time of the killing?
No, the jury may also take into account other facts (the events leading up to the killing, for example. State v. Norman There was a history of extreme abuse within the family. After a brutal beating, the husband went to sleep while the woman went to her mother's house. She returned with a gun and, while the husband was still sleeping, shot him. Could she put forward self-defense, even though there was no imminent threat?
The Court of Appeals considers "learned helplessness" and batteredwoman syndrome in finding that the wife did have an imminent fear of harm The Supreme Court, however, found that imminency meant "must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.



Common Law

SS 35.15 Justification, use of physical force in defense of a person.

1. A person may use physical force upon another person, when and to the extent he or she reasonably believes it to be necessary to defend themselves or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force, unless: a. the latter's conduct was provoked by the actor. b. the actor was the initial aggressor; unless, the actor has withdrawn from the encounter and communicated their withdrawal. c. the physical force involved is the

Non Deadly
- A [?] is justified in using force against another person when they believe that such force is immediately necessary to protect against the unlawful use of force by another person on the present occasion.
- Subjective, does not require reasonableness N.B.: There is no imminence requirement

A defendant is justified in using force against another if the defendant is not the aggressor and the defendant reasonably believed that such force was necessary to defend against the imminent use of unlawful force by another person. A defendant may use deadly force in self defense only to prevent the immediate use of unlawful deadly force.

Deadly Justified in using deadly force in self-defense only if the force is necessary to protect the defendant against the death, serious bodily

An aggressor may only use the defense if they have withdrawn and communicated their withdrawal. A non-deadly aggressor may regain the defense if the other person

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