common law:
must be facing deadly force or serious physical injury.
common law
force:
(1) deadly
(2) imminent
(3) unlawful
belief:
(4) necessary
(5) reasonably
NYPL
belief:
(1) reasonable
(2) necessary
force:
(3) imminent
(4) unlawful
(5) deadly
exceptions:
1. aggressor rule: if you start the fight, there are limits to self-defense
common law: if you through unlawful act..., can't use self-defense
NYPL: initial aggressor -- any standard
MPC: intent to invoke serious physical injury
exception to aggressor rule is the renunciation rule --
what does D have to do to make himself not aggressor anymore?retreat rule -
castle exception: but even here, there's differences in the doctrine
NYPL - english rule
other jurisdictions - the true man rule
so, back to bernie goetz...
it's 1984.
goetz boards a 2 train, from 14th to chambers st.
the youths ask for money, goetz shoots at them.
the question: how do we define reasonableness?
the reasonableness requirement
NYPL: in NYS, how do we define reasonable? see NYPL 35.15
NYPL: "s/he reasonably believes" (OBJ)
MPC 3.04(2)(b): "the actor believes" (SUB)
back to goetz...
on the basis of the facts of the case, do we really think that goetz subjectively thought that deadly force was necessary? if it's subjective and he says "yes", he wins.
under MPC, it would have played out like this:
goetz would have said, "well subjectively i thought that i was in such danger that i had to act (see april 7 notes: goetz was that racially crazed)"
now we turn to MPC 3.04(2)
do we just allow anybody who believes that deadly force is necessary to kill?
we then to MPC 3.09(2) which is a limit to 3.04: "if the actor is reckless
or negligent in having such belief"
if goetz is reckless and negligent in his belief, the defense is unavailable to him.
but now, we continue MPC 3.09: "in a prosecution for an offense for which recklessness or negligence, as the case maybe, suffices to establish culpability."
MPC mental states:
murder -- P or K
manslaughter --R
negligent homicide -- N
3.09 says "reckless or negligent" then the defense is unavailable. if you're N in believing that you need to use self-defense, it's unavailable for negligent homicide. if you're reckless, it's unavailable for manslaughter. but what about murder???
let's say that the jury opinion is "goetz should have known..."
the jury opinion is that he is crim N.
let's say the jury "goetz was reckless"
the jury would convict him of manslaughter.
in NYS, the NYPL 35.15 will make him guilty of murder.
what's the policy argument behind this? what's the reasoning for the MPC?
the MPC is entirely based on retributive culpability:
it is trying to exactly match the conviction with the mental state.
this is 2.02 of the MPC!
what is the NYPL approach? we'll look at the exact flip side:
utilitarian argument - an innocent person is dead, and this statute
prevents people from acting recklessly, especially to use deadly
self-defense.
harm - the harm is extremely serious
we have one approach to reasonableness, you are or you aren't:
we want to deter mistakes!
what's the criticism?
you can't deter mistakes.
the rebuttal?
you can't deter mistakes, but you can make people think twice. think about stat rape: there's some worry about over deterrence, okay... do we want overdeterrence here?
the MPC is often called "imperfect self-defense":
reckless = manslaughter
negligence = crim homicide
therefore, it's not really subjective...
back to goetz.
"a determination of reasonableness must be based on the circumstances facing a defendant or his situation"
where else have we seen this language? extreme emotional disturbance
so let's look at bernie's situation (remember that this case was pretried):
at this trial what should/not be considered part of the situation?
- prior muggings
- physical attributes of defendants
- the number of "attackers"
- age (much younger than bernie, more fit and healthy)
- race (not as much of a factor, why?
- gender (girls wouldn't have been feared as much as boys probably)
should race matter?
racial paranoia.
what is the difference between the simmons case (the thought that the asian guy down the street was a shaolin who would kick his ass), goetz (i'm surrounded by black youths on the 1980s subway train)
like with rape, do we want people's typical belief that is widely held but wrong to be allowed to be used as a standard for it to be considered "reasonable"
** the more you want to subjectify, the more you're focused on culpability.
do we want to allow that?
the utilitarian argument is that this is such a severe harm presented from acting as a vigilante. the deterrence element is particular.
how much do we subjectify the objective standard?
how do we evaluate the culpability of someone who does something really outrageously but with the intent of doing something for a utilitarian reason, or subjective belief of harm?
in manslaughter, we saw extreme emotional disturbance.
in rape law, we see culpability and harm trying to push social understanding of the crime.
here we're looking at similar things with self-defense:
so much of it is about race --
the object of the subjective question often extends around race!!!
state v. norman
is the history of abuse between them a reasonable factor to determining the subjective belief of necessity of the self-defense? of course!
are her experiences relevant as a objective standard? absolutely
but... what about the belief that she couldn't get away/ call the cops/ etc?
at the moment she killed him, was the threat imminent?
(n.b. -- regardless of how the jury is instructed, the expert testimony and the beatings would always have been entered to the case. becuase always have to prove that the defendant believed that there was a threat presented.)
