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On the Criminal Defenses of “Justification” and “Excuse”

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles


How can you not love the criminal defenses?

With the government burdened with proving every element of an offense beyond a reasonable doubt, one criminal defense strategy is to challenge the identity of the perpetrator. Yes, says the defense lawyer in an alibi defense. I am sure the crime was committed, and wasn’t it a particularly egregious one at that? But it wasn’t my client who committed it. He was across town at the time of the offense, and here are the three witnesses who can prove it. Or, in the related defense of mistaken identity, my client simply looked like the man who committed the crime. The complaining witness never got a good look at the man who did it, and was mistaken at the time of the photo array.

Moving along the continuum are the defenses which challenge other elements of the offense. Some focus on the actus reus – the “guilty act.”  Yes, my client was present at the time of the drug sale, goes the “mere presence” defense. But there were other people who actually participated in the transaction. My client was an innocent bystander. Or, yes, my client was driving the car but he wasn’t intoxicated at the time of the accident.

Others focus on the mens rea – or “guilty mind.”  While my client may have been driving the car, he had no way of knowing that it was stolen. Or, yes, he physically took the money. But, because he was intending to return it to its proper owner, there was no criminal intent.

Finally, toward the other end of the continuum and the topic of today’s blog entry, are the criminal defenses falling under the general categories of either justification or excuse. In either of these cases, the defense lawyer does not challenge the identity of the person who committed the actions. Nor does the lawyer question whether or not the defendant’s actions meet the elements of the offense(s) with which the defendant has been charged. He acknowledges that they do. What he does argue is that the defendant’s actions were either justified or excused in some way, thereby bringing the defendant’s actions out of the realm of criminal behavior.

A justification defense, according to Wayne LaFave, is one that takes otherwise criminal conduct and explains it in a socially acceptable context as deserving “neither criminal liability nor even censure.”  The example LaFave uses is one we all learned in law school:  A man burns a field to create a firebreak, thereby preventing a raging fire from spreading to nearby homes. This could be arson. It could be malicious destruction of property. Or it could be an act of heroism, justified by the need to prevent a greater harm.

Self-defense is probably the best known of the justification defenses. Yes, the defendant inflicted serious bodily injury on the complaining witness but the complaining witness was the aggressor in this case and the defendant, in fear for his life, was merely protecting himself. Critical to a justification defense is the concept of proportionality; society is willing to forgive the defendant for his actions only if he uses the amount of force or causes the degree of destruction that is reasonably necessary. Going beyond what is minimally required brings the act back into the realm of criminal behavior deserving sanction.

Also falling within the category of justification are the criminal defenses of duress and necessity. Duress is when the pressure applied on the defendant is caused by humans. Rob this bank, the Jesse Eisenberg character is told in the recent movie “30 Minutes Or Less,” or we will detonate the bomb strapped to your body.

Necessity is when the forces compelling the defendant to criminal action are physical or natural. Writes LaFave:  “The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils:  either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and this produce a greater or equal or lesser amount of harm.”

The example we learned in law school, albeit in the torts context, was the sailor who, finding himself at sea during a sudden storm, takes safety at a nearby dock. The sailor should still be held civilly liable for any damage his unauthorized use of the dock may have caused. But, because his actions were justified in face of the pending danger, he should not be held criminally liable for trespass or destruction of property.

Finally, there is the criminal defense of excuse. In this case, the lawyer does not deny that the government has been able to make out every element of the crime. Nor does the lawyer attempt to justify the defendant’s actions by blaming some outside force, either human or natural.  Instead, the rationale for avoiding criminal liability in this case comes from some defect within the defendant himself, some disability that serves, in Wayne LaFave’s language, as an “excusing condition.”

According to LaFave, in order for such a disability to excuse what would otherwise be criminal conduct, the defense would need to prove either that the defendant’s conduct was not a product of voluntary effort; or that he failed to understand the nature and consequences of his conduct; or that he did not know that his conduct or its results were wrong or criminal; or that the defendant was so lacking in control over his conduct that it would not be proper to hold him accountable for it.

The most widely known defense under the “excuse” category would be the insanity defense. This defense, says LaFave, is quite different from other defenses; the result, if it is successfully interposed, is not outright acquittal and release of the accused but rather a special form of verdict or finding, usually followed by commitment of the defendant to a mental institution. But this will have to be the focus of a separate blog entry.