Defenses After the Prosecution has Proven:

Voluntary Act

Social Harm

Mens Rea

Actual Cause

Proximate Cause

The Defendant May Assert:

Affirmative Defenses!

Affirmative Defenses o 2 Categories Justifications When a Defendant asserts a justification defense, she is asserting that her actions were right justified -- given the circumstances. Self-Defense, Defense of Others, Necessity, etc Excuses Duress, Insanity, etc o Justifications o Self Defense Getting Away With Murder: A How to Guide (Deadly Force Requirements) D must have an honest and reasonable fear of death or serious bodily harm; The unlawful threat of death or serious bodily harm must be imminent.

The D must not have used excessive force; AND Defendant was NOT the Initial Aggressor. ***Minority of States have duty to retreat which must be exercised first (1) Honest and Reasonable Fear The reasonable fear (or belief) must be what a reasonable person would hold. o Who is the reasonable person? Depends on what the Court/Jury will consider: Physical attributes Prior Experiences Present Situation A partial success of self defense is called imperfect self defense o Some Courts will recognize a situation where a defendant has: An honest but unreasonable fear/belief of imminent death or serious bodily injury. NC Recognizes imperfect self-defense o If you succeed on imperfect self-defense, you are guilty of voluntary manslaughter, not Murder. (2) Imminent and Unlawful Threat Generally, a person may not assert self-defense unless the threat of death or bodily injury is imminent. o Threat of future harm is not sufficient to justify the present use of force. o This standard has been relaxed to some extent raising a jury question of whether a reasonable person would believe the threat was imminent. NC and Battered Spouse o NC Majority refuses to instruct on self-defense on the grounds that a sleeping man represents an imminent threat of death or injury to the battered spouse. This is the traditional approach that most courts follow (objective standard). o NC Dissent views an imminent threat as one that is ongoing, likely to happen and capable of happening at any moment without warning. This is a modern approach of viewing from defendants situation (more subjective standard).

(3) Proportional Response to the Threat Proportional o Defendant may use only the amount of force he/she believes is reasonably necessary to prevent harm to himself, a force proportional to the attack. o Deadly force may be used if deadly force is threatened or if deadly force is necessary to defend oneself. (4) Defendant Not Initial Aggressor. o General Rule First aggressor may not assert self defense, however: Non-Deadly vs. Deadly Forceif an aggressor uses non-deadly force, he can claim self-defense if the victim responds with deadly force. o If the aggressor uses deadly force in the first place, he/she cannot claim self defense. Withdrawal by First AggressorIf the aggressor withdraws from the encounter and communicates this to the victim, he/she regains the right to self-defense. o In this situation, the victim has lost the right to claim self-defense. ***(5) Duty to Retreat Majority, including NC, there is not duty Castle Exception o You dont have to retreat from own home MPC Elements o Actor believes that such force is immediately necessary (no reasonable requirement) o However, if the actors subjective belief is reckless or negligent, then the defendant may be convicted of a reckless or negligent homicide. o Immediately necessary to protect himselfa person may use deadly force even if the aggressor will not use deadly force immediately. o Cant use self-defense if defendant is the first aggressor o Retreat with complete safety must be used, unless he/she is in his/her dwelling or place of work

New NC LAW as of December 1st, 2011 Creates a rebuttable presumption of a reasonable fear of imminent death or SBI for the lawful occupant of a home, motor vehicle or workplace when using deadly force when both of the following applies o The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace. o The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Presumption does not apply if o The victim has the right to be there. o Child or grandchild situation with a lawful custody/guardianship victim. o Defender is engaged in, attempting to escape from or using the home, motor vehicle or workplace to further any criminal offense that involves use or threat or force or violence against any individual. o Victim is a law enforcement officer or bail bondsman in their lawful performance of their duties. o The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the home, motor vehicle, or workplace and (ii) has exited the home, motor vehicle, or workplace. More Presumptions o A person who unlawfully and by force enters or attempts to enter a person's home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Immunity o A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was

lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. o Defense of Others 2 Views Majority (and NC) o A defendant may use force in defense of another if he/she reasonably believed that the person he/she assisted would be justified in using force to protect himself/herself. Minority o A defendant steps into the shoes of the person he/she defends. If that person had no right to defend himself/herself, the defendant has no right. o Some require a special relationship with person aided Defense of Property Non-deadly force may be used to prevent a wrongful entry on ones real property of wrongful taking of property. Generally, deadly force may not be used, except in situations involving ones dwelling where the person reasonably believes that force is necessary to prevent attack upon himself/herself and in situations where the person reasonably believes force is necessary to prevent entry by a person who intends to commit a felony. New NC Statute above applies here Necessity: The Lesser of Two Evils Typical Requirements: Harm sought to be avoided is greater than the harm committed; No alternative that would avoid the harm Harm is imminent Situation was not brought about by the defendant Courts are reluctant to allow necessity when defendant is charged with an intentional killing. MPC A person is justified if: o The actor believes that the conduct is necessary to avoid harm to himself or another; o The harm avoided is greater than the harm by the law prohibiting his conduct;

There is no plainly legislative intent to exclude the justification o Defense is unavailable in a prosecution for any offense for which Recklessness or Negligence can prove guilt (when recklessness or negligence in bringing situation about) ***states that the defense is potentially available in homicide prosecutions.

Excuses o Defendant is acknowledging that the act is wrong but that there is an excuse for the defendant under the circumstances. Examples: Duress, Intoxication and Insanity o Duress Duress v. Necessity Necessity involves pressure from physical or natural forces. Duress involves a human threat. If Defendant was threatened with harm to himself If Defendant was threatened with harm to himself/herself or another, and that threat compelled him/her to commit a crime, defendant may raise duress as a defense. Must reasonably believe committing crime was only way to avoid harm Threat of harm must be imminent Duress NOT available: if defendant is charged with murder or manslaughter; Threats against property alone; Defendant cannot create the situation where it was probable he/she would be subject to duress. MPC Duress may be used when: Defendant committed an offense because he was coerced to do so by another persons use, or threat to use, unlawful force against him or a third party AND a person of reasonable firmness would have committed the offense. Defense is unavailable in a prosecution for any offense for which Recklessness or Negligence can prove guilt (when R or N in bringing situation about) ***NO bar to use of duress in murder