Defense In Criminal Law Research Articles

Defending Begging Offenders

Begging is a criminal offence in most Australian States and Territories. It is a strict liability offence, and thus the bases upon which those arrested for begging may defend the charge are limited. Most people charged with begging plead guilty and incur a penalty, and very few decisions in relation to the offence of begging are appealed or reported. The criminalisation of begging is unjust and unwarranted. Begging is directly associated with extreme poverty and homelessness, and common justifications for the retention of begging offences, including safety fears, aesthetics and mere annoyance are unpersuasive. In view of the fact that there seems to be little prospect of the removal of the offence of begging from Australian statute books, this paper suggests a number of bases upon which a charge of begging might be defended. It argues that the criminal law defence of necessity may be available to demonstrate that the resort to begging was proportionate to the peril of being unable to meet material needs such as food and shelter. It also raises constitutional arguments upon which the criminalisation of begging may be challenged, making use of the implied freedom of political communication and rule of law principles. Further, it provides an analysis of the various provisions of international human rights law which the criminalisation of begging contravenes.

Murder and the reasonable man: passion and fear in the criminal courtroom

Part 2 of 2. Part 1 is located: http://ssrn.com/abstract=394601 This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected at first glance, they are linked by the defendant's reliance on social norms to bolster his (or her) claim of reasonableness.I offer three proposals for reform. My first proposal is theoretical - rather than relying on a positivist conception of reasonableness (or one that focuses on what the average or typical person would have believed or done), I suggest we ought to also utilize a normative conception of reasonableness (or one that focuses on what actions ought to be considered reasonable). To implement this normative conception of reasonableness, I offer a practical reform: a race-switching (or gender-switching or sexual orientation-switching) jury instruction. Upon a motion by the prosecutor or defense attorney or if the judge sua sponte thinks it appropriate, the judge would instruct jurors that they may switch the races (or genders or sexual orientation) of the defendant and victim and determine whether they would come to a different result after switching. If so, then jurors may wish to reconsider the case with the knowledge that they may have been relying upon racial stereotypes (or masculinity or heterosexuality norms) the first time around. Finally, I offer a doctrinal reform that raises the bar for all defendants claiming provocation or self-defense which is really just a clarification of existing law in the case of self-defense. In contrast to the current focus on reasonableness of beliefs and emotions, this reform (which I call the Act-Belief Distinction) would require the jury to find that both the defendant's beliefs (or emotions) and his or her acts were reasonable.

Mental condition defences in supranational criminal law

With the establishment of the International Criminal Court (ICC) a new supranational criminal code – the Rome Statute of the International Criminal Court (ICC Statute) – has come into effect. This new code contains elements of both civil law and common law jurisdictions, and constitutes a new, unprecedented system of criminal law and procedure. This essay will not examine the procedural rules, the Rules of Procedure and Evidence, but will focus on the grounds for excluding criminal responsibility as laid down in Article 31. More specifically it will consider those sections that deal with the defences of mental incapacity and psychological pressure: Articles 31(1)(a) and 31(1)(d). Both defences will first briefly be compared with their “national” predecessors. Next, this essay will examine the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which deals with roughly the same crimes as the ICC. The interpretation of these defences by the ICTY could be indicative of future interpretations by the ICC. Combining the new ICC Statute, the national angle and the jurisprudence of the ICTY, it should be possible to determine the scope of insanity and duress in contemporary supranational law and, finally, predict their efficacy under the ICC Statute.

Legitimate Defence in the Criminal Law of Iran and Islam

Legitimate defence was enacted in the Iranian Penal Code in 1991 and 1996 and covers defence of life, dignity, family, freedom and property of the person or another. Legitimate defence is differently addressed by Shiite and Sunnite jurists in Islamic literature. Attack and defence have their own conditions in the Iranian and Islamic Penal Codes. These conditions are evaluated and discussed in this article.

Wrongdoing, Culpability and the Logic of Criminal Law Defences

This article examines the question of criminal liability in terms of the theoretical distinction between justification and excuse. By contrast with German and other continental criminal law systems, the distinction has not played a significant part in the development of criminal law doctrine in common law jurisdictions. Over the past twenty years, however, there has been a growing interest in the benefits of this approach to conceptualising criminal liability, manifested by the considerable literature on justification and excuse and the frequent references to the distinction in judicial decisions and legislative enactments. Although the distinction has been given a great deal of attention in common law countries in recent years, attempts at a systematic classification of criminal law defences on this basis run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to overlap in the moral basis of a legal defence. It is ...

The Structure of Defences in Scots Criminal Law

One central pillar of scholarship about criminal defences concerns their structure. Three categories of defence are commonly recognised in the academic literature, and to a degree by the courts: capacity defences, justifications, and excuses. This article considers how defences should be structured and the impact that such a structure has on the content of legally recognised defences such as diminished responsibility, necessity, coercion, and provocation.

The mental disability requirement in the insanity defense.

This paper offers a discussion of some of the nuances of mental disease or defect as required for the insanity defense in criminal law. It also compares and contrasts the mental disease or defect definitions of criminal law with those definitions used in clinical practice. It points out a general pattern of vagueness and dispute regarding the proper interpretation of the mental disability requirement in the insanity defense and in other legal provisions. It reports a variety of interpretations by courts and commentators regarding the meaning of these phrases, and it reports attempts by state legislatures to narrow the range of applicable conditions by excluding various mental or emotional states.

Provocation as a Defence for Abused Women Who Kill

After the decision by the Supreme Court of Canada in Lavallee, Canadian women who are victims of serious domestic abuse have been able to invoke an ‘enlarged’ conception of self-defence to exonerate some acts of killing abusers. While concern remains about Lavallee, this judgement broke important ground in insisting on a more sensitive account of the actual experience of abused women, and in giving recognition to the reasonable fears that such women have for their lives. However, other than self-defence, there is no criminal law defence or plea that has been effective as a (partial) excuse or justification for killings by abused women. In this paper, I will consider the potential for a plea of provocation to serve such a role. Provocation has acquired some standing in other jurisdictions as a defence for abused women who kill but it has not as yet been effectively used in Canada. I will look at the appropriateness of provocation as a plea in some abuser homicides. The paper will discuss some ways in which the plea of provocation could be enlarged in scope and in normative power; the paper will also examine some shortcomings of the current understanding of provocation to serve a defence for women who kill. Since homicides by women make up a small fraction of all homicides, even a reformed defence of provocation would be rarely used. But the more important question is whether a plea which has been available to men for several centuries should not also be (much more) available to women who kill, and whether closer attention to the situations and perspectives of women in abusive relationships yields good grounds for thinking some kill as excusable or reasonable responses to serious provocation. The underlying concern is an equality concern; that women have equal access to suitable defences for their putative breaches of the criminal law, and that standards of reasonableness operative in criminal case deliberation be as responsive to women’s experience and women’s values as they are to men’s.

On the Possibility of a Criminal Law Defence for Conscientious Objection

In this paper, I will discuss the question of the response of the law to the social phenomenon of violation of the law from moral motives. This phenomenon is characterised by the fact that the motivation behind the violation of the law is the desire of the actor to act according to his moral beliefs. In the case of “normal” criminality, on the other hand, a person violates the law for non-moral reasons, e.g., to obtain an advantage, to release anger, etc. Within the category of morally-motivated violation, too, there are different types of breach. First, a distinction exists between “revolutionary disobedience” and other acts. “Revolutionary disobedience” might also be motivated by moral considerations, but it is differentiated in that it involves violations of the law which are intended to bring about a change in the existing regime. As opposed to this, there are violations of the law which are motivated by moral considerations, but which are perpetrated by people who are interested in the continuation of the existing regime and social structure in its entirety. I shall not deal with “revolutionary disobedience” in this paper.Secondly, even within the group of violations from moral motives which do not constitute “revolutionary disobedience”, the present practice is to identify two types of breach: civil disobedience and conscientious objection. The main thrust of the distinction is this: in essence, civil disobedience is a political act, an appeal to the public, and its aim is to bring about a change in the law or in policy which seem to the violator to be wrong or immoral. Conscientious objection is a personal act. The violator feels that should he submit to the law, in the circumstances, he will be committing a moral wrong. The objector’s act is not motivated by a desire to influence the whole polity, but rather, by a desire to stay clean, and not to perpetrate, with his own hands, a moral wrong. In effect this is an act of the individual defending himself against coercive pressures to perform what he regards as a moral wrong.

Gender, Crime, and the Criminal Law Defenses

Gender is one of the strongest predictors of crime, particularly violent crime. Arrest, self report, and victimization data consistently show that men and boys commit significantly more crime, both serious and not, than women and girls. In addition evidence from the Biosocial Study - one of the country’s largest longitudinal studies of biological, psychological, and sociological predictors of crime - shows that different factors are predictive of crime among females than males. With some exceptions, biological factors were found to be more predictive of crime among females, whereas environmental factors were found to be more predictive of crime among males. These differences between the sexes raise the question of whether the criminal justice system should recognize a gender-based standard for either punishments or defenses. After a detailed look at the results of the Biosocial Study and examination of current gender-based defenses, both biological and cultural, the author concludes that criminal defenses and sentencing should be gender neutral. A policy of specific deterrence based on generalizations about immutable individual characteristics, such as gender, offends society’s notions of justice and promotes faulty stereotypes.

Should a Criminal Code Distinguish Between Justification and Excuse?

Criminal law defences may be classified as either “justification” or “excuse”. A justification negates the wrongfulness of the conduct. The following are considered justifications: law enforcement, self-defence and lesser evils. An excuse, on the other hand, negates only the culpability of the actor for wrongful conduct. Under special circumstances, such as extreme pressure, it is considered unfair to blame the actor for the violation of the norm. Insanity and duress are typical excuses.

The serial view of criminal law defenses

The serial view of criminal law defenses

Notes on the Structure of a Theory of Excuses

* Associate Professor of Law, University of North Carolina at Chapel Hill. 1 See, e.g., Michael D. Bayles, Character, Purpose, and Criminal Responsibility, 1 LAW & PHIL. 5 (1982); Richard B. Brandt, The Insanity Defense and the Theory of Motivation, 7 LAw & PHIL. 123 (1988) [hereinafter Brandt, The Insanity Defense]; Richard B. Brandt, A Motivational Theory of Excuses in the Criminal Law, in 27 NoMos, CRIMINAL JUSTICE 165 (J. Roland Pennock & John W. Chapman eds., 1985) [hereinafter Brandt, A Motivational Theory of Excuses]; Joshua Dressler, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 33 WAYNE L. REv,. 1155 (1987) [hereinafter Dressler, Justifications and Excuses]; Joshua Dressler, New Thoughts About the Concept ofJustification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 U.C.L.A. L. REV. 61 (1984) [hereinafter Dressler, New Thoughts]; Albin Eser,Justification and Excuse, 24 AM.J. COMP. L. 621 (1976); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW (1978) [hereinafter FLETCHER, RETHINKING CRIMINAL LAW]; George P. Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974); George P. Fletcher, The Right Deed For The Wrong Reason: A Reply to Mr. Robinson, 23 U.C.L.A. L. Rev. 293 (1975); George P. Fletcher, Should Intolerable Prison Conditions Generate A justification or an Excuse for Escape?, 26 U.C.L.A. L. Rev. 1355 (1979) [hereinafter Fletcher, Intolerable Prison Conditions]; George P. Fletcher, The Unmet Challenge of Criminal Theory, 33 WAYNE L. REV. 1439 (1987); Kent Greenawalt, Conflicts of Law and Morality-Institutions of Amelioration, 67 VA. L. REV. 177 (1981); Kent Greenawalt, Distinguishing justifications from Excuses, 49 LAW & CONTEMP. PROBS. 89 (1986) [hereinafter Greenawalt, Distinguishing Justifications from Excuses]; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984) [hereinafter Greenawalt, Perplexing Borders]; Jerome Hall, Comment on Justification and Excuse, 24 Am.J. Comp. L. 638 (1976); H.L.A. Hart, Legal Responsibility and Excuses, in DETERMINISM AND FREEDOM IN THE AGE OF MODERN SCIENCE (Sidney Hook ed., 1961); Andrew von Hirsch & Nils Jareborg, Provocation and Culpability, in RESPONSIBILITY, CHARACTER, AND EMoTIONS 241 (Ferdinand Schoeman ed., 1987); Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of the Doctrine, 73 CAL. L. REV. 323 (1985); SANFORD H. KADISH, Excusing Crime, 75 CAL. L. REV. 275 (1987); Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985); Michael S. Moore, Choice, Character, and Excuse, 7 Soc. PHIL. & POL'Y 29 (1990) [hereinafter Moore, Choice, Character, and Excuse]; MICHAEL MOORE, LAW AND PSYCHIATRY (1984); Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM.

Exculpatory Defences in Criminal Law

The concern of this article is the theory of exculpatory defences in the criminal law of the common-law world.1 The term 'exculpatory defences' is here used to describe those general defences which negative criminal culpability despite the presence of the definitional elements of an offence. Culpability may be negatived because the actus reus occurred in a special context, as in defences like self-defence or duress. Alternatively, it may be negatived because of mental impairment, as where an incapacity to know that conduct is wrong grounds an insanity defence. Exculpatory defences arise independently of the definitional elements of offences. They are therefore separate from defences which negative actus reus or mens rea, including defences like intoxication and like insanity in the form where there is incapacity to understand the nature and quality of the conduct. Exculpatory defences are also separate from procedural defences like those which cover double jeopardy and those which control abuse of police powers. Procedural defences operate regardless of culpability, barring a conviction on grounds of defects or abuses in the handling of cases. Although self-defence and some of the other exculpatory defences have always attracted critical attention, the features of these defences as a group were neglected until recent years. For example, throughout the common-law world, texts on criminal law have typically analysed individual defences in the absence of an overall theoretical framework or with a framework of minimal proportions. This is in sharp contrast to the theoretical treatment which has long been accorded to questions of actus reus and mens rea. Consequences of this neglect are the inconsistencies and obscurities which permeate the law of the individual defences. There are now signs of growing and strengthening interest in the theory of exculpatory defences. This development may be a product of the attention which was earlier paid to elements of offences. Analysis of the concepts of actus reus and mens rea has clarified the role of exculpatory defences within principles of criminal culpability. Contemporary interest in these defences has also been stimulated by

The taint of intoxication

The defence of intoxication within the framework of common law criminal jurisprudence continues to receive extensive criticism. The purpose of this article is not to add to these criticisms per se, many of which have been fully discussed recently in this Journal by Mitchell,’ but instead to consider the effect of the intoxication doctrine upon other criminal law defences. At present, many common law jurisdictions, including England2 and Canada,3 accept a rule which restricts the availability of the defence of self-induced intoxication to so-called specific intent crimes.4 This rule is built on policy and has the effect of convicting intoxicated defendants for crimes of recklessness and basic intent, by ensuring that evidence of intoxication is inadmissible to show lack of mens rea. In short, a plea of self-induced intoxication will often be fatal to the accused and may even be viewed as relieving the prosecution of its normal burden of proving mens rea for the offence. Certainly, one thing is clear, the courts have consistently taken a hard line towards the plea of self-induced intoxication, having often expressed the view that, in such cases, the defendant deserves punishment as a result of having allowed himself to get into an incapacitated condition. However, the effects of this doctrine do not stop there, but have instead been used by the judiciary to control the availability of other quite separate defences, where the defendant has been found to have been intoxicated at the time of the commission of the offence. The primary purpose of this article, therefore, is to explore the interrelationship between the intoxication doctrine and other defences, in order to critically assess the way in which the courts have over-zealously allowed their attitude towards self-induced incapacity to taint and infect alternative methods of exculpation which might be otherwise open to the accused.

Necessity: A Necessary Defence in Criminal Law?

Necessity: A Necessary Defence in Criminal Law?

Mental condition as a defence in criminal law: a lawyer addresses medical men.

Mental condition as a defence in criminal law: a lawyer addresses medical men.

Diminished Mental Capacity As A Criminal Law Defence

Diminished Mental Capacity As A Criminal Law Defence

The Growth and Development of Automatism as a Defence in Criminal Law

The Growth and Development of Automatism as a Defence in Criminal Law

Insanity as a Defense in Criminal Law - The Legal View

Insanity as a Defense in Criminal Law - The Legal View