10 Chapter Ten: Affirmative Defenses

Sections in Chapter 10

From Justification to Excuse: Necessity and Duress



Nearly universally, persons wish to avoid the burdens of a criminal conviction. Once charged with an offense, defendants often face a range of different outcomes. As you know by now, for many defendants a guilty plea may seem the best available option, especially if they face the threat of pretrial detention or more severe charges at trial. But for those defendants who decide against a guilty plea, there are a few main strategies to avoid conviction. The type of defense that is the focus of this chapter—the affirmative defense—is best understood in relation to other types of defense arguments that you have already seen.

Because the prosecution bears the burden of proof in a criminal case, one defense strategy is to argue that the prosecution has not met that burden. A failure of proof argument is a claim that the prosecution has not adequately proven all necessary elements of the charged offense. There are many variations of a failure of proof claim. You have seen sufficiency of the evidence claims, in which the defendant argues that the evidence is insufficient to establish one or more elements of the offense. Other failure of proof claims may be linked to questions of statutory interpretation. For example, a defendant may argue that, when the language of the statute is properly interpreted, it requires proof of a given mental state that the prosecution has not established. Challenges to jury instructions may also be a form of failure of proof claim. A defendant could argue that a jury instruction misstated the law and thus did not require the jury to find the precise elements required by the applicable statute. (Still another approach, one you will see frequently in a course in constitutional criminal procedure, is an effort to suppress the prosecution’s key evidence by arguing that the evidence was seized in violation of the federal or state constitution. Without the necessary evidence, the prosecution would then be unable to meet its burden of proof. In this book, you saw this kind of argument in Commonwealth v. Copenhaver in Chapter One, but for the most part we do not address issues of constitutional criminal procedure.)

Less frequently, defendants may try to avoid a conviction (or get it reversed on appeal) by raising a constitutional challenge to the statute itself or to an enforcement decision other than the obtaining of evidence. In Chapters Two and Three, you saw examples of these types of constitutional challenges, such as the argument in City of Chicago v. Morales that Chicago’s gang loitering statute was void for vagueness and thus a violation of the Due Process Clause, or the argument in United States v. Armstrong that prosecutors had selected defendants for prosecution in a racially biased manner that violated the Equal Protection Clause. And you have seen other appeals to both state and federal constitutional constraints occasionally throughout the book.

This chapter focuses on a third type of defense argument: the affirmative defense. In contrast to a failure of proof claim, an affirmative defense typically does not dispute that the prosecution can establish the elements of the charged offense. And in contrast to a constitutional claim, an affirmative defense argument does not challenge the government’s constitutional authority to enact the relevant statute or use it against the defendant. Instead, an affirmative defense is an argument that the defendant should not be convicted and punished even if the evidence establishes the elements of the charged offense. Courts and scholars frequently speak of affirmative defenses in terms of justification and excuse. Some affirmative defenses, such as self-defense, are classified as justifications on the theory that a defendant was justified in committing the conduct that violates the statute, perhaps because committing the crime was necessary to avoid a still worse outcome (such as the defendant’s own death at the hands of an attacker). Some affirmative defenses, such as insanity, are characterized as excuses rather than justifications: when a person with severe mental illness commits a crime, we do not say that the person was justified in acting that way, but we may choose to excuse the person from criminal liability if we think the mental illness was severe enough. You have seen a few examples of other types of affirmative defenses, such as the mistake-of-law affirmative defense that the defendant raised unsuccessfully in People v. Marrero (Chapter Seven), or the abandonment / renunciation defense to a charge of attempt, discussed in People v. Acosta (Chapter Eight). (In those two cases, neither court characterized the affirmative defense in terms of justification or excuse, but it’s likely both the mistake-of-law and abandonment defenses would be seen as arguments that the defendant’s conduct should be excused, rather than arguments that it was justified conduct.)

Affirmative defense arguments are not often successful, but they can be illuminating. They can help clarify the state’s choices to impose criminal liability by providing a point of contrast: when does the legal system decline to impose criminal liability, even on someone whose conduct and mental state meets the statutory definition of a criminal offense? Self-defense arguments have drawn particular attention in recent years thanks to several high-profile cases in which a white (or non-Black) defendant killed an unarmed Black victim but avoided conviction by claiming self-defense. As will be discussed in this chapter, the success of a self-defense claim usually depends on convincing a judge (and possibly a jury) that the defendant had a “reasonable” fear for his own life. Thus, self-defense claims often put the target of force on trial, in a sense; the question becomes whether the person who was shot or otherwise harmed was “reasonably” perceived as threatening. If race affects who is perceived as dangerous, then race can influence which self-defense claims are successful. Many commentators have argued that self-defense law undervalues Black lives by accommodating biased fears of Blacks. Indeed, the 2012 killing of Trayvon Martin by George Zimmerman, followed by Zimmerman’s subsequent acquittal on grounds of self-defense, launched the Black Lives Matter movement. Though more empirical research is needed to fully understand racial disparities in self-defense claims, it appears that white defendants who kill Black victims are about ten times more likely to prevail with a self-defense claim than Black defendants who kill white victims, and white defendants who kill Black victims are about eight times more likely to prevail with a self-defense claim than all other combinations (white killing white, Black killing Black, etc.). See Addie C. Rolnick, Defending White Space, 40 Cardozo L. Rev. 1639, 1654-1655 (2019).

Race has been a contentious issue in many self-defense cases; gender has been salient in others. One strand of controversial self-defense cases involves women who kill allegedly abusive partners. Self-defense law generally requires proof that the defendant responded to an “imminent” threat using only “necessary” force. Gender can potentially influence the perception of a threat as imminent, or the perception that force is necessary. Some critics of traditional self-defense doctrine have argued that it is based on a background assumption of the “true man” that does not give abused women adequate leeway to protect themselves.

As is true with crime definitions, affirmative defenses may be defined differently in different jurisdictions. However, there are clear patterns and a lot of commonality across different states and the federal system. This chapter will identify the most common legal definitions of the affirmative defenses of self-defense, duress, necessity, and insanity. Like crime definitions, affirmative defenses can be described as lists of elements: what are the specific facts that must be established in order for the defendant to avoid conviction? But affirmative defenses differ from crime definitions in two important respects. First, common law doctrines remain more influential in the context of affirmative defenses. Although most U.S. jurisdictions require crimes to be defined by legislatures in statutory text, there is more variation with affirmative defenses. Some jurisdictions do define affirmative defenses by statute, but others rely on common law definitions. In this chapter, you will see examples of both approaches.

Second, the prosecution bears the burden of proof with respect to the elements of crimes, but the defendant often bears the burden of proving an affirmative defense. To be sure, the standard of proof is typically lower than “beyond a reasonable doubt” – for example, a defendant may have to prove the elements of duress by a preponderance of the evidence, or the elements of insanity by clear and convincing evidence. For self-defense, defendants typically have a burden of production but not the ultimate burden of proof. That is, most states provide that once the defendant has introduced sufficient evidence of self-defense, the prosecution then bears the burden of disproving the self-defense claim beyond a reasonable doubt. Just as the precise elements of an affirmative defense are defined by the specific jurisdiction, the allocation of the burden of proof, and the precise standard of proof, for such a defense will also be determined by the specific jurisdiction.

This chapter focuses on four affirmative defenses: self-defense, necessity, duress, and insanity. Each of these defenses is highly individualistic, in the sense that each focuses on the particular circumstances and mental states of an individual defendant. In this regard, the law of affirmative defenses (like the rest of criminal law) treats responsibility for crime as a matter of individual, rather than social, responsibility. Although there is considerable evidence that social and environmental factors – including poverty, family circumstances, access to health care, and similar variables – have substantial effects on the likelihood that a person will engage in conduct that leads to an arrest and prosecution, American criminal law has generally resisted taking any of those factors into account in deciding an individual’s criminal liability. See, e.g., Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Inequality 9 (1985); Andrew E. Taslitz, The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background, 2 Ala. C.R. & C.L. L. Rev. 79 (2011).


N.Y. Penal Law § 35.15. Justification; use of physical force in defense of a person

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant [to law]; or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by § 35.20.

The PEOPLE of the State of New York, Appellant


Bernhard GOETZ, Respondent

Court of Appeals of New York
68 N.Y.2d 96

July 8, 1986

Chief Judge WACHTLER.

A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor’s charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.


The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy….

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.

It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated “give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey’s side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked “how are you,” to which he replied “fine.” Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said “give me five dollars.” Goetz stated that he knew from the smile on Canty’s face that they wanted to “play with me.” Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed.”

Goetz then established “a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to “murder [the four youths], to hurt them, to make them suffer as much as possible.” When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot “tried to run through the crowd [but] they had nowhere to run”. Goetz then turned to his right to “go after the other two”. One of these two “tried to run through the wall of the train, but * * * he had nowhere to go.” The other youth (Cabey) “tried pretending that he wasn’t with [the others]” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said ‘[y]ou seem to be all right, here’s another’ ”, and he then fired the shot which severed Cabey’s spinal cord. Goetz added that “if I was a little more under self-control * * * I would have put the barrel against his forehead and fired.” He also admitted that “if I had had more [bullets], I would have shot them again, and again, and again.”


… On March 27, 1985, [a] Grand Jury filed a 10–count indictment, containing four charges of attempted murder, four charges of assault in the first degree, one charge of reckless endangerment in the first degree, and one charge of criminal possession of a weapon in the second degree…. Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with [an] earlier three-count indictment.

On October 14, 1985, Goetz moved to dismiss the charges … alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged, and that the prosecutor’s instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant….

In an order dated January 21, 1986, Criminal Term granted Goetz’s motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court … rejected Goetz’s contention that there was not legally sufficient evidence to support the charges [but held] that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a “reasonable man in [Goetz’s] situation”. The court … concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.

… On appeal by the People, a divided Appellate Division affirmed [the] dismissal of the charges. [The People appealed] to this court….


Penal Law article 35 recognizes the defense of justification, which [permits] the use of force in defense of a person, encompassing both self-defense and defense of a third person. Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: “[a] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person” (emphasis added).

Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: “A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery” (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat.[1]

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in § 35.15 to the Grand Jury… When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term “reasonably believes.” The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” It is this response by the prosecutor—and specifically his use of “a reasonable man”—which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35.15 uses the term “he reasonably believes,” the appropriate test, according to that court, is whether a defendant’s beliefs and reactions were “reasonable to him.” Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term “reasonably” in a statute, and misconstrues the clear intent of the Legislature … to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense… These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness….

 In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated…. The drafting of the general provisions of the new Penal Law, including the article on justification, was particularly influenced by the Model Penal Code…. While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.

…[U]nder Model Penal Code § 3.04(2)(b), a defendant charged with murder (or attempted murder) need only show that he “believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse” to prevail on a self-defense claim [against a charge of intentional murder or attempted murder]…. If the defendant’s belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of [a] homicide charge requiring only a reckless or negligent … criminal intent….

The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness….

New York did not follow the Model Penal Code’s equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word “reasonably” before “believes”.

The plurality below agreed with defendant’s argument that the change in the statutory language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the insertion of “reasonably.” Had the drafters of § 35.15 wanted to adopt a subjective standard, they could have simply used the language of [MPC] § 3.04. “Believes” by itself requires an honest or genuine belief by a defendant as to the need to use deadly force. Interpreting the statute to require only that the defendant’s belief was “reasonable to him,” as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant’s own perceptions could completely exonerate him from any criminal liability.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality’s interpretation, as the dissenters below recognized, excises the impact of the word “reasonably.” …

…The conclusion that § 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here… Nowhere in the legislative history is there any indication that “reasonably believes” was designed to change the law on the use of deadly force or establish a subjective standard….

Statutes or rules of law requiring a person to act “reasonably” or to have a “reasonable belief” uniformly prescribe conduct meeting an objective standard measured with reference to how “a reasonable person” could have acted…

Goetz … argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of “reasonableness” without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.” Such terms encompass more than the physical movements of the potential assailant. 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.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under § 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the “circumstances,” as explicated above, if a reasonable person could have had these beliefs.

The prosecutor’s instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz’s conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of “circumstances” or “situation” and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury… This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt…

…[The prosecutor’s] instructions were not as complete as the court’s charge on justification [to a trial jury] should be, but they sufficiently apprised the Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz’s reactions were unreasonable and therefore excessive.

Notes and questions on Goetz

  1. Goetz was charged with attempted murder, under the same attempt statute that you saw in People v. Acosta (Chapter Eight) and the same murder statute that you saw in Patterson v. New York (Chapter Five) and People v. Russell (Chapter Nine). The state relied on the portion of the New York second degree murder statute that criminalized an intentional killing: “A person is guilty of murder in the second degree when … [w]ith intent to cause the death of another person, he causes the death of such person….” Notice that Goetz did not contest that he tried to cause the death of his victims, or that he had intent to kill them. Indeed, he testified that his intent was to “murder” them. That claim of intent illustrates the distinctive nature of an affirmative defense. Goetz could concede that his conduct and mental state met the definition of attempted murder in New York, but he argued that even so he should not be punished because his actions—which did violate the terms of the murder statute—were justified.
  2. After the New York Court of Appeals reinstated the charges (in the opinion you’ve just read), this case went to trial, and the jury acquitted Goetz of all charges except weapons possession. He spent eight months in jail. The case and trial captured national attention; Goetz was called “the subway vigilante” and embraced by many who saw his actions as a necessary response to prevalent urban crime. The court’s opinion does not mention the races of the persons involved (Goetz was white, the four young men he shot were Black), but by one observer’s account, racialized imagery and fears loomed large in the trial. Professor George Fletcher observed the trial and later reported that neither the prosecution or defense explicitly mentioned race, but Goetz’s defense referred to the Black youths as “savages,” “predators,” and “vultures.” According to Fletcher,
The covert appeal to racial bias came out most dramatically in [a re-enactment] of the shooting… The nominal purpose of the demonstration was to show the way in which the bullet entered the body of each victim. The defense’s real purpose, however, was to recreate for the jury … the scene that Goetz encountered when four black passengers began to surround him. [Goetz’s attorney] asked the Guardian Angels [a volunteer crime patrol organization] to send him … four young black men to act as the props in the demonstration. In came the four young black Guardian Angels, fit and muscular, dressed in T-shirts, to play the parts…

George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 206-207 (1988).

Should the New York Court of Appeals have addressed race in its opinion, and if so, what should it have said? Was the defense attorney’s decision to stage a reenactment with young Black men problematic? If so, why? Some scholars have argued that the racial identity of parties operates (impermissibly, but unavoidably) as a kind of character evidence, because jurors are likely to draw conclusions about the parties on the basis of their racial identities. See Jasmine B. Gonzales Rose, Toward A Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2261-2268 (2017).

  1. Darrell Cabey, who was shot in the spine and left paralyzed, sued Goetz in civil court and won a $43 million judgment in 1996. Goetz declared bankruptcy, however, and Cabey was unable to collect the judgment. As one newspaper reported,

The jury’s decision was a stunning reversal for Goetz, 48, who was acquitted of attempted murder nine years ago in the same shooting and become a national symbol of urban rage and frustration.

But this time around—in a civil as opposed to a criminal trial, before a largely black jury in the Bronx instead of a largely white one in Manhattan, and at a time when crime here is on the downswing as opposed to the upswing—the six-person jury ruled against Goetz in about five hours.

It found that Goetz acted “recklessly” and “outrageously” in his attack on Darrell Cabey, now 30, who was left brain damaged and paralyzed from the chest down by one of Goetz’s bullets.

Malcolm Gladwell, Goetz Told to Pay $43 Million, But Plaintiff to Get Little of That, South Florida Sun-Sentinel, April 24, 1996.

  1. In the opinion you’ve read, the New York Court of Appeals is very focused on whether self-defense doctrine should use a subjective standard or an objective one to evaluate the defendant’s beliefs. Self-defense doctrines always ask whether the specific defendant actually believed that he faced a sufficient threat to warrant the use of deadly force, but do we also need to evaluate whether the defendant’s belief was “objectively” reasonable? The Court of Appeals found that the second inquiry was indeed necessary. How is “objective” reasonableness determined? Which factors do you think mattered most to the jury that acquitted Goetz?The newspaper article about the civil trial quoted in the previous note suggests that both the race of the jurors and the overall salience of crime as an issue could influence a jury’s decision. The decisionmakers who determine whether a defendant’s fears are “objectively” reasonable are, of course, themselves human beings with particular perspectives and particular experiences. Are average members of a jury – at least, average members of a mostly white jury – more likely to find fear to be “objectively” reasonable when the person who is feared is Black? Or does the legal language of objectivity successfully push decisionmakers to leave aside their own specific experiences and biases?
  2. The basic framework of self-defense is consistent across most jurisdictions: a defendant who uses force and claims self-defense must show that a) a reasonable belief that b) there existed an imminent threat c) of great bodily harm to the defendant and d) the force used was necessary to avert the threat. Most jurisdictions require proportionality, meaning that the defendant’s use of force should not be more than is necessary to avert the threat. Beyond these basic requirements, jurisdictions vary on specific details such as what to do with defendants who start a fight that then escalates, or whether defendants have an obligation to retreat, if it is safe to do so, before using force. (It may seem that an option to retreat safely defeats a claim that force is “necessary,” but the concept of necessity is itself susceptible to multiple interpretations.) Under the New York self-defense statute, a defendant who is “the initial aggressor” cannot generally claim self-defense, except an aggressor who later withdraws from the conflict may regain the right to use force if the other person “persists in continuing the incident.” Notice also that the New York statute includes a duty to retreat under some circumstances. Was there any plausible argument that Goetz was the initial aggressor? Was there any plausible argument that Goetz had a duty to retreat before using deadly force?
  3. The classification of a defendant as an aggressor is thus important, and often contentious. Many definitions of self-defense, like the New York statute, refer to aggressors but do not define the term. Some New York courts have said that the term “initial aggressor” in the New York statute means “the first person who uses or threatens the imminent use of offensive physical force.” But if the first use of force is non-deadly and is met with deadly force, then courts may treat “the first person in the encounter to use deadly physical force” as the initial aggressor. See People v. McWilliams, 852 N.Y.S.2d 523, 524 (N.Y. App. Div. 2008). It is fairly common for jury instructions to refer to an aggressor as “one who provokes the conflict,” and also common for courts to leave the term “aggressor” undefined and allow the jury to interpret the word on its own.
  4. Recall the facts of People v. Russell, presented in Chapter Nine: two young men, Russell and Bekka, were crossing a courtyard when they encountered a third man, Burroughs. Someone started shooting, and soon all three were shooting. A bystander was killed. Each of the three men later claimed he had fired in self-defense. Why were the self-defense claims unsuccessful in that case? Apply N.Y. Penal Code § 35.15. Note: as a doctrinal matter, it is not the identity of the victim that makes a difference here. Most states provide that if a reasonable use of force harms someone other than the person threatening the defendant, the privilege to use force still protects the defendant from criminal liability for the injury to the third person. An unreasonable use of force, however, may result in criminal liability. See, e.g., People v. Morris, 491 N.Y.S.2d 860, 863 (N.Y. App. Div. 1985).
  5. The Goetz court notes that the New York legislature chose not to follow the Model Penal Code’s precise approach to self-defense. The MPC definition of self-defense is reprinted below for reference, but it is not as influential as other portions of the MPC that we’ve considered. Only a few states have adopted this particular definition of self-defense. See Richard Singer, The Resurgence of Mens Rea: II – Honest but Unreasonable Mistake of Fact in Self-Defense, 28 B.C. L. Rev. 459, 505 (1987). The relevant text can be found in MPC § 3.04:

(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(2) Limitations on Justifying Necessity for Use of Force.

(a) The use of force is not justifiable under this Section:

(i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or

(ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(A) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or

(B) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or

(C) the actor believes that such force is necessary to protect himself against death or serious bodily injury.

(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that:

(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

(c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.

(3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

  1. Model Penal Code § 3.04 could be read as a significant broadening of self-defense, since it allows a defense for any defendant who “believes” the use of force is immediately necessary, without an inquiry into whether the defendant’s belief is reasonable. However, the MPC is somewhat less favorable to defendants claiming self-defense than it may first appear. In a separate provision, MPC § 3.09, the MPC adopts what it sometimes called “imperfect self-defense.” On this approach, a defendant who has a genuine, but mistaken and unreasonable, belief that he needs to use force will have partial, but only partial, protection from criminal liability. If a defendant forms the belief that it is necessary to use deadly force against a purported attacker, but is reckless or negligent in forming that belief, he still may be convicted of a crime for which recklessness or negligence is a sufficient mens rea. Consider carefully the text of MPC § 3.09(2):

Model Penal Code § 3.09

(1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:

(a) the actor’s belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest that he endeavors to effect by force is erroneous; and

(b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search.


(2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.


Check Your Understanding (10-1)


As should be clear by now, self-defense law is largely focused on beliefs, so we are again in the world of mental states. But in most jurisdictions, a self-defense claim requires not only a showing that the defendant believed force was necessary, but also a showing that the defendant’s belief was reasonable (even if mistaken). Goetz raises questions about whether and how race influences perceptions of threat, and judgments of reasonableness. Another line of self-defense doctrine grapples with killings that follow domestic violence; here the question is whether gender influences either perceptions of threat or judgments about the reasonableness of those perceptions. State v. Gartland, below, illustrates this area of self-defense law. New Jersey’s self-defense statute is followed by the state supreme court opinion.

N.J.S.A. § 2C:3-4. Use of force in self-protection [as of 1997; since amended]

a. …[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

b. Limitations on justifying necessity for use of force.

(2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor or is assailed by another person whose dwelling the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties … or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

c. (1) Notwithstanding [other statutory provisions], the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

(2) A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:

(a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or

(b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

(3) An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.

STATE of New Jersey, Plaintiff–Respondent


Ellen GARTLAND, Defendant–Appellant

Supreme Court of New Jersey
694 A.2d 564

Decided June 19, 1997


This appeal concerns the statutory duty to retreat before resorting to the use of deadly force in self-defense.


The killing occurred on February 8, 1993. The jury heard evidence of long-standing physical and emotional abuse inflicted by the victim on defendant. Witnesses portrayed John Gartland as a violent and threatening husband obsessed with jealousy.

On the afternoon of the killing, the Gartlands … returned home at about 5:00 p.m., [and] a neighbor heard Mr. Gartland (John) threaten his wife. Other neighbors heard similar abuse and threats. The argument continued when John could not find the remote control for the television and accused Ellen of hiding it. Angered, he left the home. When he returned, he renewed the argument about the remote control. Ellen asked him to leave her alone and went upstairs to her bedroom. For over ten years, she and her husband had had separate bedrooms.

Previously, John had left her alone in this room. On this evening, he followed her into her bedroom. She told him to go to bed and to leave her alone. He approached her, threatening to strike her. One of them, the parties dispute which, said “I’m going to hurt you” as he approached her.

Ellen took her son’s hunting shotgun from her bedroom closet. She pointed it at her husband and told him to stop. He said, “You’re not going to do [anything] to me because you, bitch, I’m going to kill you.” He lunged at her with his fists clenched. She pulled the trigger. The shotgun blast hit her husband. He stepped into the hallway and fell.

Ellen dropped the gun, called an operator, and asked for an ambulance, saying that she had just shot her husband. She then called her son as well as John Gartland’s son. She told the responding officers that she had feared for her life. She said that she would never forget the look on his face and that he approached her looking “like a devil.”

At trial, the jury had asked twice during its deliberations for clarification of the court’s charge on self-defense. On both occasions the trial court repeated its initial instructions. The instruction never specifically apprised the jury that it could consider the seventeen years of spousal abuse suffered by Mrs. Gartland in determining whether she honestly and reasonably believed that deadly force was necessary to protect herself against her husband. The trial court used the Model Jury Charge and told the jury that “[a] reasonable belief is one which is to be held by a person of ordinary prudence and intelligence situated as Mrs. Gartland was on February 8, 1993.”

Prior to the charge, defense counsel objected to the court’s intent to charge that Ellen had a duty to retreat before resorting to deadly force. Counsel renewed his objection immediately after the charge. Before the first recharge on self-defense, defense counsel again objected. He noted that because Ellen had been in her own room, one that her husband never occupied, he was not a cohabitant and under the law she had no duty to retreat from her own separate dwelling. The trial court ruled that “under the statute, there was a duty to retreat.” …

The jury convicted Mrs. Gartland of reckless manslaughter. Two jurors later contacted the court describing confusion and indecision in their deliberations. After denying a motion for a new trial, the court sentenced Mrs. Gartland to a five-year term with a mandatory three-years imprisonment under the Graves Act. She was freed on bail pending appeal. The Appellate Division affirmed the conviction. ….  


Should the appeal be dismissed because defendant died before her appeal could be heard by this Court?

… Unlike the federal constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. Our courts will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. We decided the right of one to die even though her death had occurred before we could decide her appeal. …

Our Legislature has made a strong commitment to the eradication of domestic violence. To the extent that this decision addresses concerns in this area, it is worth the judicial effort. … [I]mportant interests of the defendant or society at large may be at stake if an erroneous conviction is left standing. We find those important interests present here.


Did the trial court err in failing to instruct the jury that defendant had no duty to retreat if defendant’s bedroom functioned as a separate dwelling and that her husband was an intruder into that separate room within the house that they shared?

 New Jersey is among the minority of jurisdictions that impose a duty of retreat on a woman attacked by her cohabitant spouse. The New Jersey Code of Criminal Justice contains carefully articulated standards for determining when the use of force against another is justified. The drafters of our Code originally approached the concept of justification in terms of the subjective attitudes of the criminal actor. However, in the course of legislative modifications the self-defense provisions of the Code were altered to reestablish objective standards of self-defense…. Concerning deadly force, the Code provides: “The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect [the actor] against death or serious bodily harm ….” N.J.S.A. 2C:3–4b(2). Even if deadly force is permissible, the actor still has the duty to retreat from the scene if the actor can do so safely. N.J.S.A. 2C:3–4b(2)(b). One exception to this duty to retreat is if the actor is in his or her own home at the time of the attack (the so-called “castle doctrine”), unless the attacker is a cohabitant. N.J.S.A. 2C:3–4b(2)(b)(i) states that “[t]he actor is not obliged to retreat from [the] dwelling, unless [the actor] was the initial aggressor or is assailed in [the actor’s own] dwelling by another person whose dwelling the actor knows it to be….” N.J.S.A. 2C:3–4c provides special rules for the use of deadly force on an intruder into one’s dwelling. For example, under this provision, deadly force may be used against an intruder to counter any level of unlawful force threatened by the intruder.

The Public Defender argues that it is ironic that Ellen Gartland could have used the shotgun against a burglar who intended to do her no serious harm but was precluded from using the same force against the true threat in her life, her husband. Instead, the law requires her to flee from her bedroom, which she had described as the only sanctuary in her chaos-filled home.

The retreat doctrine is one of several related legal doctrines affecting battered women as criminal defendants. The male pronouns used in the Code reflect a history of self-defense that is derived from a male model.[2]

Under the common law regime, even if faced with immediate danger of death or great bodily harm, an individual could use only equal force to repel the danger. The doctrine of equal force, developed on a prototype of two males of equal size and strength, held that, if attacked without a deadly weapon, one could not respond with a deadly weapon. This doctrine obviously disadvantaged women, who are generally smaller and lack the same upper-body strength as men.

Traditional common law self-defense imposes no duty to retreat, except for co-occupants of the same house. Given that most men are assaulted and killed outside their homes by strangers, while most women are assaulted and killed within their homes by male intimates, this doctrine also disadvantaged women.

[Marina Angel, Criminal Law And Women: Giving The Abused Woman Who Kills A Jury Of Her Peers Who Appreciate Trifles, 33 Am. Crim. L.Rev. 229, 320 (1996).]

… These are grave concerns. When the drafters of our Code of Criminal Justice commenced their work in 1971, the public was not fully aware of the epidemic of domestic violence. Knowledge of the problem, however, was more widespread at the time of the adoption of the Code in 1979. Legislative activity in the field of domestic abuse was already underway. For example, New Jersey had adopted the Prevention of Domestic Violence Act [later repealed] and the Shelters for Victims of Domestic Violence Act. However, there is no evidence that the Legislature specifically considered the loophole in the castle doctrine. As presently structured, the Code of Criminal Justice requires that a cohabitant who can safely leave the home to avoid violence should do so before resorting to deadly force. We have invariably adhered to the Code’s concepts of self-defense.

… There is no … basis for departing from the language of the Code…. Although we find present the statutory duty to retreat, we commend to the Legislature consideration of the application of the retreat doctrine in the case of a spouse battered in her own home. There are arguments to be made on each side of the issue.

 … That leaves for resolution whether John Gartland could be considered a cohabitant of Ellen’s bedroom. Put the other way, the question is whether the upstairs bedroom in which Ellen slept was a separate dwelling. It is a close question on this record but we agree with the courts below that the bedroom was not a separate dwelling….

Defendant emphasizes that the Prevention of Domestic Violence Act implicitly recognizes the concept of a private dwelling within a larger home by authorizing the issuance of in-house restraining orders in its attempt to prevent spousal attacks….

It is true that one building may have separate apartments. However, the idea of a dwelling is that one has an “exclusive right to occupy” a portion of a building…. In this case, there is simply no evidence that the door to the bedroom had normally been kept locked or that John Gartland did not generally have access to the room. Defendant merely testified that because of sexual dysfunction, the couple slept in separate rooms. We cannot say that Ellen had the exclusive right to occupy this room. Hence, we agree, on this record, that the court correctly charged the statutory duty to retreat.


Did the trial court err in failing specifically to instruct the jury that the evidence that defendant was abused by the decedent could be considered in assessing her claim of self-defense?

…[This Court has recognized that] evidence of prior abuse has the potential to confuse the jury and that expert testimony is useful to clarify and refute common myths and misconceptions about battered women…. Like the elements of passion-provocation manslaughter, the elements of self-defense contain subjective and objective factors that focus, respectively, on the sincerity and reasonableness of the defendant’s beliefs. Thus, defendant argues that because evidence of prior abuse is relevant to the issue of self-defense and because evidence of prior abuse is potentially confusing, it follows that the jury must be properly instructed concerning how to consider and give effect to such evidence in assessing a claim of self-defense. The trial court specifically instructed the jury to consider the evidence of prior abuse in determining the question of provocation. However, it did not specifically instruct the jury to consider evidence of prior abuse in determining the question of self-defense.

We agree that a better charge would have instructed the jury to consider the history of prior abuse in assessing the honesty and reasonableness of defendant’s belief in the need to use deadly force. Our courts have always admitted evidence of a victim’s violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim.

The issue arises in this case as one of plain error and the question is whether the absence of the specific instruction was such that it was clearly capable of producing an unjust result. We have often emphasized that instructions to a jury are to be examined as a whole. … Taken as a whole, the instruction could not be understood to foreclose the jury’s full and appropriate consideration of the prior abuse in assessing the honesty and reasonableness of defendant’s belief.

The possibility that the jury might not have considered the prior abuse in assessing the self-defense claim appears highly attenuated in this case. A major focus of the opening and closing remarks of defense counsel was that the jury could and should consider the long-standing abuse of defendant by her husband in assessing her claim of self-defense. In his opening remarks defense counsel said:

Now this is not a case, ladies and gentlemen, where a woman who claimed to have been abused for years walked into the bedroom one night and shot her sleeping husband or set the bed on fire when he was sleeping because she couldn’t take it anymore, that is not this case. This is self-defense. If Mrs. Gartland hadn’t acted to defend herself that night Johnny Gartland would be on trial for murder right now, that is what the case is all about.

So, yes, there are always many dynamics at work in a case like this and you’re going to have to try to understand some of them, but in the end what is the single most important reason that the evidence in this case will show as to why it’s important that Johnny Gartland beat up Ellen Gartland and abused her for so many years? You know why? Because on February 8, 1993, she knew what type of violence he was capable of inflicting against her and that’s why it’s important. She had every reason in the world to be afraid of him because she knew what he had done to her before. She knew what he was capable of doing and she knew the imminency of the threats, and she saw the look when he came in the bedroom to hit her. [Emphasis added.]

In his summation, he repeated this theme:

You see what is important, ladies and gentlemen, about the history and the context of this case is that she knew he was capable of doing serious injury to her because he had done it before. She knew he was capable of beating the hell out of her…. Ladies and gentlemen, in the end the history is important because that it why Ellen knew that she had a good reason to be afraid. She knew that he was capable of hurting her very badly…. He was known to be violent and abusive when he was drunk, that he had beaten his wife on occasions over a seventeen-year marriage…. [Emphasis added.]

The court’s instructions did not foreclose the jury’s consideration of that prior abuse; nor were its instructions so erroneous as to confuse or mislead the jury in its consideration of self-defense. The instructions gave the members of the jury an opportunity to consider fully whether an honest and reasonable belief in the necessity to use deadly force was present. The trial court explicitly told the jurors to consider passion-provocation in the context of knowing or purposeful murder. It also told the jurors that they could not find the defendant guilty of murder or any of the lesser-included offenses if they had a reasonable doubt as to whether or not the defendant had killed her victim in the honest and reasonable belief that the use of deadly force was necessary on the occasion.


We now turn to consider other aspects of this case that have been neither raised nor argued by the parties, that would have been grounds for retrial in the case of a living defendant.

In a long series of cases, we have held that an essential ingredient to a fair trial is that adequate and understandable instructions be given to the jury. We have regularly insisted that courts give content to statutory language in their charges to juries….

The instructions in this case were largely devoid of reference to the specific circumstances of the case. As noted, the trial court instructed the jury that if Mrs. Gartland “knew that she could avoid the necessity of using deadly force by retreating from that house, providing … [that] she could do so with complete safety, then the defense is not available to her.” We intend no criticism of the trial court because neither party requested a charge tailored to the facts. However, an abstract charge on the duty to retreat could only have been confusing in the circumstances of this case. Exactly where could she retreat? As we understand the record, there was no other way out of the bedroom other than the doorway where her assailant stood. The charge should have asked whether, armed with a weapon, she could have safely made her way out of the bedroom door without threat of serious bodily injury to herself. In the similar circumstances of State v. Thomas (Ohio 1997) a woman trapped in her trailer retreated to the bathroom. Unable to escape, she ran to a closet and took out a gun. She fired two warning shots and even after being shot her assailant continued to threaten her. The concurring judge asked, “[h]ad the defendant gotten around [her cohabitant] to the door of the small trailer, would her attempt to escape the altercation have increased the risk of her death? Would [the cohabitant] have become further enraged and tried to kill her?” These are the circumstances that a jury must evaluate. One of the problems in applying the retreat doctrine to the case of a battered woman is that the jurors may confuse the question of leaving the abusive partner with the duty to retreat on the occasion. Among the many myths concerning battered women is the belief “that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically … that women who remain in battering relationships are free to leave their abusers at any time.”

The charge on self-defense should also have been tailored to the circumstances of the case. In State v. Wanrow, 559 P.2d 548 (1977), the Washington Supreme Court recognized that its traditional self-defense standard failed to account for the perspective of abused women. Any limitation of the jury’s consideration of the surrounding acts and circumstances to those occurring at or immediately before the killing would be an erroneous statement of the applicable law. The Washington court held that a battered woman was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions that were the product of our nation’s unfortunate history of sex discrimination. At a minimum, the jury in Ellen Gartland’s case should have been asked to consider whether, if it found such to be the case, a reasonable woman who had been the victim of years of domestic violence would have reasonably perceived on this occasion that the use of deadly force was necessary to protect herself from serious bodily injury.

In another context, the failure to relate to the facts of the case the duty to retreat and right of self-defense might not have cut so mortally into a defendant’s ability to maintain a defense on the merits. However, the persistent stereotyping of the victims of domestic violence requires special concern. Both partners to the domestic tragedy are now deceased. Although we cannot fully right past wrongs, we can correct errors in the charge that were clearly capable of producing an unjust result.

The judgment of the Appellate Division is reversed and the conviction of manslaughter is set aside.

Notes and questions on Gartland

  1. Ellen Gartland had passed away between the time that she was convicted of manslaughter and the time that the New Jersey Supreme Court heard the appeal to her conviction. The state court took the case even though defendant had died, on the grounds that the case raised issues “of significant public importance” that are “likely to recur.” What were those issues of public importance?
  2. After hearing the deceased defendant’s appeal, the state court then rejected the defense’s two main arguments. What were those arguments, and why did the court reject them? Finally, in Part V, the court turns to “other aspects of this case that have been neither raised nor argued by the parties.” What are those aspects? Why does the court eventually reverse Gartland’s conviction?
  3. Be sure to understand the castle doctrine, and the “loophole” in it referred to by the Gartland court. The castle doctrine is essentially an exception to a duty to retreat. Many states that impose a duty to retreat provide an exception to that duty for a defendant who is threatened in his or her own home. (The name of the doctrine comes from the phrase, “A man’s home is his castle,” and reflects a view that no one should have to retreat from an attacker in one’s own “castle.”) But under the New Jersey law applicable at the time of Gartland, the castle doctrine was itself subject to an exception: if the attacker also lives in the same home, then the duty to retreat apparently arises again. Even so, the duty to retreat (rather than use force in self-defense) applies only when one can retreat “with complete safety.” Do the reported facts suggest an option of safe retreat here? (In 1999, not long after Gartland, the state legislature amended the statute to remove the requirement of retreat from a cohabitant.)
  4. As Gartland’s public defender pointed out, the New Jersey statute gave Ellen Gartland broader leeway to use force against an intruder who did not threaten deadly force than against her husband who had directly threatened to kill her. Consider carefully the terms of N.J.S.A. § 2C:3-4c. This section provides that the use of deadly force against an intruder is justifiable “when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or others … against the use of unlawful force by the intruder on the present occasion.” That much is consistent with general self-defense doctrine. But then the statute goes on to state the necessary reasonable belief exists if the defendant had any fear of personal injury, or the defendant “demanded that the intruder disarm, surrender, or withdraw, and the intruder refused to do so.”
  5. The National Rifle Association has had a significant influence on American self-defense law. According to one study, since 2005 more than 40 states have enacted or proposed new legislation that broadens the right to use deadly force. These new laws, “conceived and advocated by the National Rifle Association, … purport to change existing self-defense law in one or both of the following ways: First, they permit a home resident to kill an intruder by presuming rather than requiring proof of reasonable fear of death or serious bodily harm; second, they reject a general duty to retreat from attack, even when retreat is possible, not only in the home, but also in public space.” Jeannie Suk, The True Woman: Scenes from the Law of Self-Defense, 31 Harv. J. L. & Gender 237, 238 (2008). The latter type of law is often labeled a “Stand Your Ground” law. Both types of provisions are sometimes championed as efforts to help women protect themselves from violence. Critics argue that in practice, the effect of these legal changes has been “the normalization and promotion of (often white) male violence in an increasing number of scenarios,” rather than any greater protection for women who are subjected to physical abuse. See, e.g., Mary Anne Franks, Real Men Advance, Real Women Retreat: Stand Your Ground, Battered Women, 69 Univ. Miami L. Rev. 1099 (2014).
  6. As suggested by the quotation from Professor Franks in the previous note, criticisms of Stand Your Ground laws have focused at least as much on race as on gender. By giving defendants greater leeway to respond to perceived threats with force (even when retreat is an option), Stand Your Ground laws may exacerbate the effects of racial bias in threat perceptions. So argues one scholar: even in a state without a Stand Your Ground law, a white defendant is more than twice as likely to succeed with a self-defense claim if the victim of the force was Black rather than white. In states that do have Stand Your Ground Laws, a white defendant is more than three times as likely to succeed with a self-defense claim if the victim of the force was Black rather than white. See Jasmine B. Gonzales Rose, Toward A Critical Race Theory of Evidence, 101 Minn. L. Rev. 2243, 2267-2268 (2017).
  7. Some courts and commentators frame debates about self-defense law in terms of objectivity (usually, reasonable person standards) and subjectivity (standards that are more attentive to the particular experiences of the individual defendant). You saw this debate in People v. Goetz, and here again in Gartland. Notice that the objectivity vs. subjectivity framing assumes that objectivity is an option – that is, it assumes that legal decisionmakers can develop and apply legal standards without taking their own subjective perspectives into account. Against that assumption, one study of self-defense cases suggested that the “objective” elements of self-defense doctrine are actually vehicles for decisionmakers to shape outcomes based on the details that the individual decisionmaker sees as important.

    The problem with the law of self-defense is neither new nor limited to the battered woman; it is as old and as persistent as the law’s search for an objective meaning for necessity. Based on a survey of twenty years of self-defense cases, I sought to “test” claims of objectivity by focusing on what purports to be one of the most objective of self-defense rules: the requirement that the threat must have been “imminent” for the defendant’s response to have been permissible. …

    My survey shows that the important question is not whether the law has become too soft or subjectified but what we mean by its objectivity. The case law shows that imminence has many meanings; indeed, imminence often operates as a proxy for any number of other self-defense factors—for example, strength of threat, retreat, proportionality, and aggression. Perhaps more importantly, my survey shows that the conventional image of imminence may be incorrect. It is widely believed by scholars that the “problem” of imminence is one of too much time between the threat and the killing. If my survey is right, however, most judicial opinions raising imminence do not involve long periods of time between the threat and the killing. They are cases of weak threats and extended fights, cases in which the defendant is struggling with the victim, is faced with a gun, believes that the victim is advancing, or hears a stranger in the woods outside his home. This should confound traditional doctrinal understandings of the term “imminence” (which presume imminence as relevant only in nonconfrontational “waiting” cases). Indeed, it presents strong evidence supporting my hypothesis—that imminence carries undeclared meanings.

    This has important implications for both the law of self-defense as well as our image of the problem of battered women. The law of self-defense, if I am right, is far from as settled or coherent as it is assumed to be; its meaning and theory remain, in my view, largely unresolved. What seems so objective—the status quo—turns out to be a good deal more complex and contingent than has been assumed.

    V.F. Nourse, Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235, 1236-1237 (2001).

Check Your Understanding (10-2)

From Justification to Excuse: Necessity and Duress

[The relevant statutory provision is included in footnote 1 in the opinion below.]



Clifford BAILEY et al.

Supreme Court of the United States
444 U.S. 394

Decided Jan. 21, 1980

Mr. Justice REHNQUIST delivered the opinion of the Court.

In the early morning hours of August 26, 1976, respondents Clifford Bailey, James T. Cogdell, Ronald C. Cooley, and Ralph Walker, federal prisoners at the District of Columbia jail, crawled through a window from which a bar had been removed, slid down a knotted bedsheet, and escaped from custody. Federal authorities recaptured them after they had remained at large for a period of time ranging from one month to three and one-half months. Upon their apprehension, they were charged with violating 18 U.S.C. § 751(a), which governs escape from federal custody.[3] At their trials, each of the respondents adduced or offered to adduce evidence as to various conditions and events at the District of Columbia jail, but each was convicted by the jury. The Court of Appeals for the District of Columbia Circuit reversed the convictions by a divided vote…. We granted certiorari, and now reverse the judgments of the Court of Appeals.

In reaching our conclusion, we must decide the state of mind necessary for violation of § 751(a) and the elements that constitute defenses such as duress and necessity. In explaining the reasons for our decision, we find ourselves in a position akin to that of the mother crab who is trying to teach her progeny to walk in a straight line, and finally in desperation exclaims: “Don’t do as I do, do as I say.” The Act of Congress we construe consists of one sentence set forth in the margin, n. 1, supra ; our own pragmatic estimate … is that “in general, trials for violations of § 751(a) should be simple affairs.” Yet we have written, reluctantly but we believe necessarily, a somewhat lengthy opinion supporting our conclusion, because in enacting the Federal Criminal Code Congress legislated in the light of a long history of case law that is frequently relevant in fleshing out the bare bones of a crime that Congress may have proscribed in a single sentence. See Morissette v. United States (1952).


All respondents requested jury trials and were initially scheduled to be tried jointly. At the last minute, however, respondent Cogdell secured a severance. Because the District Court refused to submit to the jury any instructions on respondents’ defense of duress or necessity and did not charge the jury that escape was a continuing offense, we must examine in some detail the evidence brought out at trial.

The prosecution’s case in chief against Bailey, Cooley, and Walker was brief. The Government introduced evidence that each of the respondents was in federal custody on August 26, 1976, that they had disappeared, apparently through a cell window, at approximately 5:35 a. m. on that date, and that they had been apprehended individually between September 27 and December 13, 1976.

Respondents’ defense of duress or necessity centered on the conditions in the jail during the months of June, July, and August 1976, and on various threats and beatings directed at them during that period. In describing the conditions at the jail, they introduced evidence of frequent fires in “Northeast One,” the maximum-security cellblock occupied by respondents prior to their escape. Construed in the light most favorable to them, this evidence demonstrated that the inmates of Northeast One, and on occasion the guards in that unit, set fire to trash, bedding, and other objects thrown from the cells. According to the inmates, the guards simply allowed the fires to burn until they went out. Although the fires apparently were confined to small areas and posed no substantial threat of spreading through the complex, poor ventilation caused smoke to collect and linger in the cellblock.

Respondents Cooley and Bailey also introduced testimony that the guards at the jail had subjected them to beatings and to threats of death. Walker attempted to prove that he was an epileptic and had received inadequate medical attention for his seizures.

Consistently during the trial, the District Court stressed that, to sustain their defenses, respondents would have to introduce some evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described. But the court waited for such evidence in vain. Respondent Cooley, who had eluded the authorities for one month, testified that his “people” had tried to contact the authorities, but “never got in touch with anybody.” He also suggested that someone had told his sister that the Federal Bureau of Investigation would kill him when he was apprehended.

Respondent Bailey, who was apprehended on November 19, 1976, told a similar story. He stated that he “had the jail officials called several times,” but did not turn himself in because “I would still be under the threats of death.” Like Cooley, Bailey testified that “the FBI was telling my people that they was going to shoot me.”

Only respondent Walker suggested that he had attempted to negotiate a surrender. Like Cooley and Bailey, Walker testified that the FBI had told his “people” that they would kill him when they recaptured him. Nevertheless, according to Walker, he called the FBI three times and spoke with an agent whose name he could not remember. That agent allegedly assured him that the FBI would not harm him, but was unable to promise that Walker would not be returned to the D.C. jail. [The FBI disputed that Walker contacted them at all.] Walker testified that he last called the FBI in mid-October. He was finally apprehended on December 13, 1976.

At the close of all the evidence, the District Court rejected respondents’ proffered instruction on duress as a defense to prison escape.[4] The court ruled that respondents had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions. After receiving instructions to disregard the evidence of the conditions in the jail, the jury convicted Bailey, Cooley, and Walker of violating § 751(a).

Two months later, respondent Cogdell came to trial before the same District Judge who had presided over the trial of his co-respondents…. [T]he District Court ruled that Cogdell could not present evidence of conditions at the jail. Cogdell subsequently chose not to testify on his own behalf, and was convicted by the jury of violating § 751(a).

By a divided vote, the Court of Appeals reversed each respondent’s conviction and remanded for new trials. The majority concluded that the District Court should have allowed the jury to consider the evidence of coercive conditions in determining whether the respondents had formulated the requisite intent to sustain a conviction under § 751(a). According to the majority, § 751(a) required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and “with an intent to avoid confinement.” The majority then defined the word “confinement” as encompassing only the “normal aspects” of punishment prescribed by our legal system. Thus, where a prisoner escapes in order to avoid “non-confinement” conditions such as beatings or homosexual attacks, he would not necessarily have the requisite intent to sustain a conviction under § 751(a)…

The dissenting judge objected to what he characterized as a revolutionary reinterpretation of criminal law by the majority. He argued that the common-law crime of escape had traditionally required only “general intent,” a mental state no more sophisticated than an “intent to go beyond permitted limits.”…


… In the present case, we must examine both the mental element, or mens rea, required for conviction under § 751(a) and the circumstances under which the “evil-doing hand” can avoid liability under that section because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.


…As relevant to the charges against Bailey, Cooley, and Walker, § 751(a) required the prosecution to prove (1) that they had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that they had escaped from that custody. As for the charges against respondent Cogdell, § 751(a) required the same proof, with the exception that his confinement was based upon an arrest for a felony rather than a prior conviction. Although § 751(a) does not define the term “escape,” courts and commentators are in general agreement that it means absenting oneself from custody without permission.

Respondents have not challenged the District Court’s instructions on the first two elements of the crime defined by § 751(a). It is undisputed that, on August 26, 1976, respondents were in the custody of the Attorney General as the result of either arrest on charges of felony or conviction. As for the element of “escape,” we need not decide whether a person could be convicted on evidence of recklessness or negligence with respect to the limits on his freedom. A court may someday confront a case where an escapee did not know, but should have known, that he was exceeding the bounds of his confinement or that he was leaving without permission. Here, the District Court clearly instructed the juries that the prosecution bore the burden of proving that respondents “knowingly committed an act which the law makes a crime”…. At a minimum, the juries had to find that respondents knew they were leaving the jail and that they knew they were doing so without authorization. The sufficiency of the evidence to support the juries’ verdicts under this charge has never seriously been questioned, nor could it be.

The majority of the Court of Appeals, however, imposed the added burden on the prosecution to prove as a part of its case in chief that respondents acted “with an intent to avoid confinement.” While, for the reasons noted above, the word “intent” is quite ambiguous, the majority left little doubt that it was requiring the Government to prove that the respondents acted with the purpose—that is, the conscious objective—of leaving the jail without authorization. In a footnote explaining their holding, for example, the majority specified that an escapee did not act with the requisite intent if he escaped in order to avoid “ ‘non-confinement’ conditions” as opposed to “normal aspects of ‘confinement.’ ”

We find the majority’s position quite unsupportable. Nothing in the language or legislative history of § 751(a) indicates that Congress intended to require either such a heightened standard of culpability or such a narrow definition of confinement. As we stated earlier, the cases have generally held that, except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction. Accordingly, we hold that the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission….


Respondents also contend that they are entitled to a new trial because they presented (or, in Cogdell’s case, could have presented) sufficient evidence of duress or necessity to submit such a defense to the jury….

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity.

Modern cases have tended to blur the distinction between duress and necessity. In the court below, the majority discarded the labels “duress” and “necessity,” choosing instead to examine the policies underlying the traditional defenses. In particular, the majority felt that the defenses were designed to spare a person from punishment if he acted “under threats or conditions that a person of ordinary firmness would have been unable to resist,” or if he reasonably believed that criminal action “was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense.” The Model Penal Code redefines the defenses along similar lines. See Model Penal Code § 2.09 (duress) and § 3.02 (choice of evils).

We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under § 751(a). Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” the defenses will fail. Clearly, in the context of prison escape, the escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of § 751(a) was his only reasonable alternative.

In the present case, the Government contends that respondents’ showing was insufficient on two grounds. First, the Government asserts that the threats and conditions cited by respondents as justifying their escape were not sufficiently immediate or serious to justify their departure from lawful custody. Second, the Government contends that, once the respondents had escaped, the coercive conditions in the jail were no longer a threat and respondents were under a duty to terminate their status as fugitives by turning themselves over to the authorities.

Respondents, on the other hand, argue that the evidence of coercion and conditions in the jail was at least sufficient to go to the jury as an affirmative defense to the crime charged. As for their failure to return to custody after gaining their freedom, respondents assert that this failure should be but one factor in the overall determination whether their initial departure was justified. According to respondents, their failure to surrender “may reflect adversely on the bona fides of [their] motivation” in leaving the jail, but should not withdraw the question of their motivation from the jury’s consideration.

We need not decide whether such evidence as that submitted by respondents was sufficient to raise a jury question as to their initial departures. This is because we decline to hold that respondents’ failure to return is “just one factor” for the jury to weigh in deciding whether the initial escape could be affirmatively justified. On the contrary, several considerations lead us to conclude that, in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure[5] and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.

First, we think it clear beyond peradventure that escape from federal custody as defined in § 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by an escaped prisoner, “the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Moreover, every federal court that has considered this issue has held, either explicitly or implicitly, that § 751(a) defines a continuing offense.


… The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, “for he is not to be hanged because he would not stay to be burnt.” United States v. Kirby (1869). And in the federal system it is the jury that is the judge of whether the prisoner’s account of his reason for flight is true or false. But precisely because a defendant is entitled to have the credibility of his testimony, or that of witnesses called on his behalf, judged by the jury, it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense—here that of duress or necessity.

We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. We have reviewed the evidence examined elaborately in the majority and dissenting opinions below, and find the case not even close, even under respondents’ versions of the facts, as to whether they either surrendered or offered to surrender at their earliest possible opportunity. Since we have determined that this is an indispensable element of the defense of duress or necessity, respondents were not entitled to any instruction on such a theory. Vague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.


In reversing the judgments of the Court of Appeals, we believe that we are at least as faithful as the majority of that court to its expressed policy of “allowing the jury to perform its accustomed role” as the arbiter of factual disputes. The requirement of a threshold showing on the part of those who assert an affirmative defense to a crime is by no means a derogation of the importance of the jury as a judge of credibility. Nor is it based on any distrust of the jury’s ability to separate fact from fiction. On the contrary, it is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses. If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense.

These cases present a good example of the potential for wasting valuable trial resources. In general, trials for violations of § 751(a) should be simple affairs. The key elements are capable of objective demonstration; the mens rea, as discussed above, will usually depend upon reasonable inferences from those objective facts. Here, however, the jury in the trial of Bailey, Cooley, and Walker heard five days of testimony. It was presented with evidence of every unpleasant aspect of prison life from the amount of garbage on the cellblock floor, to the meal schedule, to the number of times the inmates were allowed to shower. Unfortunately, all this evidence was presented in a case where the defense’s reach hopelessly exceeded its grasp. Were we to hold, as respondents suggest, that the jury should be subjected to this potpourri even though a critical element of the proffered defenses was concededly absent, we undoubtedly would convert every trial under § 751(a) into a hearing on the current state of the federal penal system.

Because the juries below were properly instructed on the mens rea required by § 751(a), and because the respondents failed to introduce evidence sufficient to submit their defenses of duress and necessity to the juries, we reverse the judgments of the Court of Appeals.


Mr. Justice MARSHALL took no part in the consideration or decision of these cases.

[Concurring opinion by Justice STEVENS omitted.]


Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins, dissenting.

The Court’s opinion, it seems to me, is an impeccable exercise in the undisputed general principles and technical legalism: The respondents were properly confined in the District of Columbia jail. They departed from that jail without authority or consent. They failed promptly to turn themselves in when, as the Court would assert by way of justification, the claimed duress or necessity “had lost its coercive force.” Therefore, the Court concludes, there is no defense for a jury to weigh and consider against the respondents’ prosecution for escape….

It is with the Court’s assertion that the claimed duress or necessity had lost its coercive force that I particularly disagree. The conditions that led to respondents’ initial departure from the D.C. jail continue unabated. If departure was justified—and on the record before us that issue, I feel, is for the jury to resolve as a matter of fact in the light of the evidence, and not for this Court to determine as a matter of law—it seems too much to demand that respondents, in order to preserve their legal defenses, return forthwith to the hell that obviously exceeds the normal deprivations of prison life and that compelled their leaving in the first instance. The Court, however, requires that an escapee’s action must amount to nothing more than a mere and temporary gesture that, it is to be hoped, just might attract attention in responsive circles. But life and health, even of convicts and accuseds, deserve better than that and are entitled to more than pious pronouncements fit for an ideal world.

The Court, in its carefully structured opinion, does reach a result that might be a proper one were we living in that ideal world, and were our American jails and penitentiaries truly places for humane and rehabilitative treatment of their inmates. Then the statutory crime of escape could not be excused by duress or necessity, by beatings, and by guard-set fires in the jails, for these would not take place, and escapees would be appropriately prosecuted and punished.

But we do not live in an ideal world “even” (to use a self-centered phrase) in America, so far as jail and prison conditions are concerned. The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent. The Court itself acknowledges that the conditions these respondents complained about do exist. It is in the light of this stark truth, it seems to me, that these cases are to be evaluated. It must follow, then, that the jail-condition evidence proffered by respondent Cogdell should have been admitted, and that the jury before whom respondents Bailey, Cooley, and Walker were tried should not have been instructed to disregard the jail-condition evidence that did come in. I therefore dissent.


The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking. The dissent in the Bailey case in the Court of Appeals acknowledge that “the circumstances of prison life are such that at least a colorable, if not credible, claim of duress or necessity can be raised with respect to virtually every escape.” And the Government concedes: “In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety.”

A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.

Even more appalling is the fact that guards frequently participate in the brutalization of inmates. The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.

The evidence submitted by respondents in these cases fits that pattern exactly. Respondent Bailey presented evidence that he was continually mistreated by correctional officers during his stay at the D.C. jail. He was threatened that his testimony in the Brad King case would bring on severe retribution. Other inmates were beaten by guards as a message to Bailey. An inmate testified that on one occasion, three guards displaying a small knife told him that they were going [kill Bailey, using a racial epithet to refer to Bailey]. The threats culminated in a series of violent attacks on Bailey. Blackjacks, mace, and slapjacks (leather with a steel insert) were used in beating Bailey.

Respondent Cooley also elicited testimony from other inmates concerning beatings of Cooley by guards with slapjacks, blackjacks, and flashlights. There was evidence that guards threatened to kill Cooley.

… It cannot be doubted that excessive or unprovoked violence and brutality inflicted by prison guards upon inmates violates the Eighth Amendment…. There can be little question that our prisons are badly overcrowded and understaffed and that this in large part is the cause of many of the shortcomings of our penal systems. This, however, does not excuse the failure to provide a place of confinement that meets minimal standards of safety and decency. Penal systems in other parts of the world demonstrate that vast improvement surely is not beyond our reach….


The real question presented in this case is whether the prisoner should be punished for helping to extricate himself from a situation where society has abdicated completely its basic responsibility for providing an environment free of life-threatening conditions such as beatings, fires, lack of essential medical care, and sexual attacks. To be sure, Congress in so many words has not enacted specific statutory duress or necessity defenses that would excuse or justify commission of an otherwise unlawful act. The concept of such a defense, however, is “anciently woven into the fabric of our culture.” J. Hall, General Principles of Criminal Law 416 (2d ed. 1960), quoted in Brief for United States 21. And the Government concedes that “it has always been an accepted part of our criminal justice system that punishment is inappropriate for crimes committed under duress because the defendant in such circumstances cannot fairly be blamed for his wrongful act.”

Although the Court declines to address the issue, it at least implies that it would recognize the common-law defenses of duress and necessity to the federal crime of prison escape, if the appropriate prerequisites for assertion of either defense were met. Given the universal acceptance of these defenses in the common law, I have no difficulty in concluding that Congress intended the defenses of duress and necessity to be available to persons accused of committing the federal crime of escape.

I agree with most of the Court’s comments about the essential elements of the defenses. I, too, conclude that intolerable prison conditions are to be taken into account through affirmative defenses of duress and necessity, rather than by way of the theory of intent espoused by the Court of Appeals… I therefore agree that it is appropriate to treat unduly harsh prison conditions as an affirmative defense.

I also agree with the Court that the absence of reasonable less drastic alternatives is a prerequisite to successful assertion of a defense of necessity or duress to a charge of prison escape. One must appreciate, however, that other realistic avenues of redress seldom are open to the prisoner. Where prison officials participate in the maltreatment of an inmate, or purposefully ignore dangerous conditions or brutalities inflicted by other prisoners or guards, the inmate can do little to protect himself. Filing a complaint may well result in retribution, and appealing to the guards is a capital offense under the prisoners’ code of behavior. In most instances, the question whether alternative remedies were thoroughly “exhausted” should be a matter for the jury to decide.

I, too, conclude that the jury generally should be instructed that, in order to prevail on a necessity or duress defense, the defendant must justify his continued absence from custody, as well as his initial departure. I agree with the Court that the very nature of escape makes it a continuing crime. But I cannot agree that the only way continued absence can be justified is by evidence “of a bona fide effort to surrender or return to custody.” The Court apparently entertains the view, naive in my estimation, that once the prisoner has escaped from a life- or health-threatening situation, he can turn himself in, secure in the faith that his escape somehow will result in improvement in those intolerable prison conditions. While it may be true in some rare circumstance that an escapee will obtain the aid of a court or of the prison administration once the escape is accomplished, the escapee, realistically, faces a high probability of being returned to the same prison and to exactly the same, or even greater, threats to life and safety.

The rationale of the necessity defense is a balancing of harms. If the harm caused by an escape is less than the harm caused by remaining in a threatening situation, the prisoner’s initial departure is justified. The same rationale should apply to hesitancy and failure to return. A situation may well arise where the social balance weighs in favor of the prisoner even though he fails to return to custody. The escapee at least should be permitted to present to the jury the possibility that the harm that would result from a return to custody outweighs the harm to society from continued absence.

Even under the Court’s own standard, the defendant in an escape prosecution should be permitted to submit evidence to the jury to demonstrate that surrender would result in his being placed again in a life- or health-threatening situation. The Court requires return to custody once the “claimed duress or necessity had lost its coercive force.” Realistically, however, the escapee who reasonably believes that surrender will result in return to what concededly is an intolerable prison situation remains subject to the same “coercive force” that prompted his escape in the first instance. It is ironic to say that that force is automatically “lost” once the prison wall is passed.

The Court’s own phrasing of its test demonstrates that it is deciding factual questions that should be presented to the jury. It states that a “bona fide” effort to surrender must be proved. Whether an effort is “bona fide” is a jury question. The Court also states that “[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.”. Traditionally, it is the function of the jury to evaluate the credibility and meaning of “necessarily self-serving statements” and “ambiguous conduct.”

Finally, I of course must agree with the Court that use of the jury is to be reserved for the case in which there is sufficient evidence to support a verdict. I have no difficulty, however, in concluding that respondents here did indeed submit sufficient evidence to support a verdict of not guilty, if the jury were so inclined, based on the necessity defense. Respondent Bailey testified that he was in fear for his life, that he was afraid he would still face the same threats if he turned himself in, and that “[t]he FBI was telling my people that they was going to shoot me.” Respondent Cooley testified that he did not know anyone to call, and that he feared that the police would shoot him when they came to get him. Respondent Walker testified that he had been in “constant rapport” with an FBI agent, who assured him that the FBI would not harm him, but who would not promise that he would not be returned to the D.C. jail. Walker also stated that he had heard through his sister that the FBI “said that if they ran down on me they was going to kill me.”

Perhaps it is highly unlikely that the jury would have believed respondents’ stories… Nevertheless, such testimony, even though “self-serving,” and possibly extreme and unwarranted in part, was sufficient to permit the jury to decide whether the failure to surrender immediately was justified or excused. This is routine grist for the jury mill and the jury usually is able to sort out the fabricated and the incredible.

In conclusion, my major point of disagreement with the Court is whether a defendant may get his duress or necessity defense to the jury when it is supported only by “self-serving” testimony and “ambiguous conduct.” It is difficult to imagine any case, criminal or civil, in which the jury is asked to decide a factual question based on completely disinterested testimony and unambiguous actions. The very essence of a jury issue is a dispute over the credibility of testimony by interested witnesses and the meaning of ambiguous actions.

…[T]he Court here appears to place an especially strict burden of proof on defendants attempting to establish an affirmative defense to the charged crime of escape. That action is unwarranted. If respondents’ allegations are true, society is grossly at fault for permitting these conditions to persist at the D.C. jail. The findings of researchers and government agencies, as well as the litigated cases, indicate that in a general sense these allegations are credible. The case for recognizing the duress or necessity defenses is even more compelling when it is society, rather than private actors, that creates the coercive conditions. In such a situation it is especially appropriate that the jury be permitted to weigh all the factors and strike the balance between the interests of prisoners and that of society. In an attempt to conserve the jury for cases it considers truly worthy of that body, the Court has ousted the jury from a role it is particularly well suited to serve.

Notes and questions on U.S. v. Bailey

  1. Bailey provides a good illustration of the difference between, on one hand, a failure of proof claim based on inadequate evidence of the necessary mental state, and, on the other hand, an affirmative defense. The lower federal court, the Court of Appeals, had reversed the defendants’ convictions with an argument focused on mental states. Specifically, the lower court held that the federal escape statute required the prosecution to prove that the defendant left custody “with an intent to avoid confinement,” meaning, an intent to avoid ordinary prison conditions rather than an intent to avoid extreme violence or especially poor conditions. At the Supreme Court, both the majority and the dissenting opinions rejected this reading of the statute. But the majority also rejected the defendants’ separate argument that the jury should have been instructed on the affirmative defenses of necessity and duress. Justice Blackmun’s dissent argued that the defendants had introduced enough evidence in support of these affirmative defenses to allow the jury to consider them.
  2. Notice that the question of jury instructions here is not about the specific way that necessity or duress doctrines will be described to the jury, but about whether the jury should have been told to consider these affirmative defenses at all. Judges typically serve as gatekeepers for affirmative defense arguments, meaning that the trial judge considers the evidence that the defendant wishes to present in support of the affirmative defense, and then decides whether the defendant’s evidence is substantial enough for the question to be presented to the jury. The process is comparable to a court making a probable cause determination pre-trial: a court could, in theory, decide that the evidence in support of a prosecution’s charge is so weak that it does not even establish “probable cause” and the case should not go forward. In practice, judges rarely throw out prosecutorial charges for lack of probable cause, but judges deny defendants’ requests to present affirmative defenses to juries fairly often. In Bailey’s trial, he and his co-defendants were initially allowed to present extensive evidence of the deplorable conditions in the DC jail, but the trial judge subsequently denied the defendants’ request for jury instructions on necessity and duress, and instead told the jury to disregard the evidence concerning jail conditions.
  3. Neither necessity nor duress was defined by statute in federal law at the time of this case, so the Supreme Court relies on common law to identify the elements of each defense. Necessity is sometimes called “the choice of evils” defense. The Bailey Court describes necessity as applicable to “the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils,” but does not give a specific list of elements. Here is one more specific, and fairly standard, definition of necessity from a state court:
(1) there must be a situation of emergency arising without fault on the part of the actor concerned;
(2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;
(3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
(4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

State v. Thayer, 14 A.3d 231, 233 (Vt. 2010). In Thayer, the Vermont Supreme Court rejected a necessity defense raised by a woman prosecuted for growing marijuana. Vermont had legalized medical marijuana before the woman’s arrest, but required growers to meet certain conditions, such as growing the marijuana in an indoor facility. The woman argued that marijuana was necessary to treat her ailing son and that she needed to cultivate plants outdoors in order to produce a sufficient quantity. The court found that the defendant had not established a true necessity to grow the plants inside, and noted, “to the extent defendant justifies the violation based on her disagreement or disapproval of the law’s provisions, this argument falls outside the scope of the necessity defense. The necessity defense is generally not available to excuse criminal activity by those who disagree with the policies of the government.” Thayer, 14 A.3d at 235.

  1. Duress is similar to necessity, but usually defined to require evidence that a specific person or persons threatened the defendant or a third party with death or great bodily injury, and the defendant reasonably believed that the commission of the offense was the only way to avoid that harm. The Bailey Court’s description of the conditions that will give rise to a duress defense, “threats or conditions that a person of ordinary firmness would have been unable to resist,” is typical. And as the Bailey Court notes, the traditional understanding of the necessity defense identifies some circumstance or condition (“physical forces beyond the actor’s control”) that generates the need to commit a crime, while the traditional understanding of duress identifies a human being (or multiple humans) as the source of the threat to the defendant. Necessity is classified as a justification, whereas duress is classified as an excuse.
  2. Self-defense doctrine typically applies only to defendants who are charged with the use of force against another person, so self-defense is raised most often in homicide, attempted homicide, and assault cases. Necessity and duress defenses could in principle be raised against any kind of criminal charge, although many jurisdictions say that necessity and duress are not available as a defense to murder or other homicide charges. Necessity and duress claims are infrequently raised, and they are usually unsuccessful. One context in which both claims are raised by defendants with some regularity (but again, usually without success) is gun possession.
  3. Be sure to understand why the trial court, and the U.S. Supreme Court, found it proper to deny the defendants’ request for a necessity or duress instruction to the jury: “[W]here a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” Does Justice Blackmun’s dissent reject this requirement? What is the key disagreement between majority and dissent in this case?
  4. The exponential growth of the U.S. prison population that eventually produced the term “mass incarceration” began in the 1970s and continued throughout the 1980s and 1990s, finally leveling off early in the twenty-first century. In the first decades of mass incarceration, there was a great deal of attention to, and litigation over, conditions in U.S. prisons and jails. By many accounts, prisoners’ challenges to their conditions of confinement eventually achieved a measure of success, in that prisons and jails became somewhat safer and less overcrowded. This was accomplished in part by judicial injunctions that led to the building of more prisons and the investment of more resources to manage them. For an overview and analysis of the courts’ role in this lengthy and significant change, see Malcolm Feeley & Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998). In 1976, when Bailey and his co-defendants escaped from the DC jail, conditions were still terrible at many institutions. Note the contrast between the way that the conditions identified by the majority opinion (“garbage on the cellblock floor … the meal schedule … the number of times the inmates were allowed to shower”) and the conditions identified by the concurring and dissenting opinions. The dissenting opinion reports that jail officials had made specific threats to kill Bailey and Cooley, another defendant, that the officials had used a racial epithet in referring to Bailey, and that both men were subjected to “a series of violent attacks” by jail employees.

Check Your Understanding (10-3)


Cal. Penal Code 25. Diminished capacity; insanity.

(a) The defense of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.

(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.

(c) Notwithstanding the foregoing, evidence of diminished capacity or of a mental disorder may be considered by the court only at the time of sentencing or other disposition or commitment.

(d) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.

THE PEOPLE, Plaintiff and Respondent


BETTY HORN, Defendant and Appellant

Court of Appeal, Third District, California
158 Cal.App.3d 1014, 205 Cal.Rptr. 119

Aug 1, 1984


“It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane.” People v. Kelly (1973). But who is insane? In this case we explore that question by considering the type of showing which will support a finding of not guilty by reason of insanity under Penal Code section 25, subdivision (b), a new statute added to that code by the enactment of Proposition 8, the Victim’s Bill of Rights, at the June 1982 Primary Election. Under this statute, a defendant is insane only when “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” (Pen. Code, § 25, subd. (b), italics added.) The central issue is whether the use of the word “and” rather than “or” reflects an intent of the people to reject California’s version of the historic MNaghten standard of insanity and adopt instead the “wild beast” test of antiquity. We conclude that it does not and consequently hold that the initiative measure reinstated the California M’Naghten right and wrong test as the measure of criminal insanity in this state.

…The factual circumstances are not in dispute. On the afternoon of September 17, 1982, defendant drove her automobile into the self-service island of a Texaco gas station. She put $15 worth of gasoline into her car and then attempted to pay for it with a Triple A Towing Card. When told the attendant could not accept the card, defendant stated she must have left her credit card at home…. The attendant … suggested defendant call someone to bring some cash to the station. Defendant agreed and used the telephone.

Defendant told the gas station attendant that someone was bringing money to her and the attendant suggested defendant move her car so she would not block the island. Defendant got into her car and drove out of the station. As she did so she almost struck another car. She then drove through a parking lot, across a cement border into a field, into another parking lot, and finally onto the road. An attendant from the gas station followed defendant on his motorcycle. He observed defendant travel at 80 to 85 miles per hour, and run a red light. Defendant continued at 80 to 85 miles per hour until she approached another red light. At that time she applied her brakes and slowed to about 60 miles per hour, and then entered the intersection. There defendant collided with another motorcycle and tragically killed the rider.

Defendant was charged with vehicular manslaughter. She entered pleas of not guilty and not guilty by reason of insanity. Defendant waived a jury trial and submitted the issue of guilt to the trial court…. Predictably, she was found guilty. The plea of not guilty by reason of insanity was then tried to the court.

During the sanity trial it was established beyond any doubt that defendant suffers from mental illness. …[S]he has been under treatment for mental illness for a number of years. Dr. Alfred French, a court-appointed psychiatrist, diagnosed defendant’s illness as a manic-depressive disorder. The other court-appointed psychiatrist, Dr. Audrey Mertz, concurred and added that defendant’s illness is a bipolar affective disorder. This means that she is subject to mood swings and may suffer from both the manic and depressive aspects of the disease at different times.

Defendant has been hospitalized from time to time for her illness, including a hospitalization as recent as July 1982. During her treatment for the disease defendant has been given lithium, which is one of the primary means of treating her illness. When she was discharged from the hospital in July 1982, her lithium treatment was discontinued.

Dr. French testified that in his opinion defendant would have been incapable of knowing or understanding the nature and quality of her acts and distinguishing right from wrong at the time of the accident. The discontinuance of her lithium treatment would cause her condition to deteriorate and lead to an increase in her manic state. This would result in the characteristics of impulsiveness, irrational thinking, grandiosity and irritability. This, coupled with the “provocation” she would perceive from being followed by a motorcyclist, would impair her ability to perceive her true situation accurately.

Dr. Mertz agreed that in the manic phase of her illness defendant would have difficulty determining right from wrong and in understanding the nature and quality of her acts. Her judgment, in Mertz’s opinion, was seriously impaired….

Defendant testified at the insanity phase of the trial. It appeared that in the months before the accident her life had been in turmoil. Her husband had taken the children and filed for a dissolution…. She had been using her husband’s credit card for living expenses, but had been required to return it. She had then begun selling her furniture to obtain funds. Shortly before this incident there had been a fire in defendant’s residence. [As a result of that fire, defendant was charged with arson, but was found not guilty by reason of insanity.]

…[On the day of the accident,] she wanted her husband to come to the station and pay for her gas. When she called him, however, he either could not or would not come to the station. She then got into her car and headed towards a friend’s house to obtain money. She observed the attendant from the station following on his motorcycle and was afraid of him, although she was not trying to get away from him. She remembered seeing the red light before the collision, but could not remember if she tried to stop. She did not see the motorcyclist before the collision.

Based upon this evidence, the trial court found that defendant was sane at the time of the accident. The court [found] that Proposition 8 added a more strict standard than any of the usual tests for insanity. The court expressly indicated that defendant “was legally insane under every standard known to the law except for the mental standard.” The court said defendant was insane under both prongs of the American Law Institute (ALI) test; under the knowledge of wrongfulness prong of the M’Naghten Test, and under the so-called Durham or product test. The court further indicated that it would be prepared to find that at the time of the incident defendant was incapable of distinguishing between right and wrong by reason of her mental illness. Nevertheless, the court concluded that defendant had not sustained her burden of showing that she was also incapable of knowing the nature and quality of her act, and therefore ruled that she was not insane under § 25. Defendant was sentenced to state prison for the lower base term of 16 months.


This case squarely presents issues of the meaning and validity of § 25(b). In order to resolve these issues it will be necessary to recite a brief review of the history of the insanity defense.

“The starting point from an historical point of view is the ancient position which did not regard mental disorder, or insanity, as having any bearing upon the matter of criminal guilt.” (Perkins on Criminal Law (2d ed. 1969). … When insanity became a defense to a charge of crime, it was generally held that the insanity must be total: the accused had to be wholly without the capacity to understand and remember in order to be innocent by reason of insanity.

In the nineteenth century the celebrated case of Daniel M’Naghten arose. M’Naghten had attempted to assassinate the Prime Minister of England, and instead succeeded in killing the Prime Minister’s secretary. He was found not guilty by reason of his insanity. Because of the prominence of M’Naghten’s intended victim, there was great public excitement and eventually the House of Lords put five hypothetical questions to the judges of the common law courts concerning the law of criminal responsibility. It was the judges’ response to two of those questions which ultimately became the basis for the insanity test in all American states except New Hampshire. The response asserted: “[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” M’Naghtens Case (1843) 10 Clark & Fin. 200.

The M’Naghten “right and wrong” standard was early adopted in California as the standard for an insanity defense…. The insanity test based upon the M’Naghten case has generally become known as the “right and wrong” test. [The court contrasted M’Naghten to an older “wild beast” test, which exempted a defendant from punishment on grounds of insanity only if he was “a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”] … Although various phrases have been used to set forth the M’Naghten test, “[i]n substance these all have reference to whether the defendant really knew what he was doing, and this is true whether we have in mind an extreme situation such as Stephen’s illustration of a man who thought his homicidal act was ‘breaking a jar,’ or an inquiry whether there was an understanding of the ‘real nature and true character of the act as a crime, and not … the mere act itself.’

Although the M’Naghten right and wrong standard became the test for insanity in the majority of American jurisdictions, numerous criticisms were directed at it. Some jurisdictions have modified or abandoned the M’Naghten test in favor of tests providing a broader scope of insanity. The primary manner in which the test has been modified has been by the addition of a volitional element, usually referred to as an “irresistible impulse” test, and also known as “moral insanity” or “emotional insanity.” Under this test the accused may escape criminal liability for his acts regardless whether he was capable of understanding the nature and quality of those acts and that they were wrong, if he was unable to choose between right and wrong, or to conform his conduct to the requirements of the law. In short, “this rule, broadly stated, tells jurors to acquit by reason of insanity if they find the defendant had a mental disease which kept him from controlling his conduct.” As we shall see, California’s rejection of the irresistible impulse test came early, and has persisted.

Another test developed was the Durham or “product” test [Durham v. United States (D.C. Cir. 1954).] That test required the trier of fact to determine whether the accused was insane, and if so, whether the wrongful act was the product of his insanity. The Durham formulation received little support from lawmakers and courts….

From an early date the California Supreme Court was urged to adopt the irresistible impulse test as a means of determining criminal responsibility, but the court refused to do so. In People v. Hoin, the court explained that there are three powerful restraints to a disposition to commit crime—the restraint of religion, the restraint of conscience, and the restraint of law. If a criminal disposition or influence may itself serve as an excuse for crime, then a most powerful restraint is withdrawn, that forbidding and punishing its perpetration. Accordingly, unless the impulse under which the deed was done was one which altogether deprived the accused of the ability to know that he was doing wrong, he is responsible for his actions.

… [However,] [i]n People v. Drew the Supreme Court … judicially abandoned M’Naghten. In its stead the court decreed that trial courts should apply the test developed by the American Law Institute for its Model Penal Code, known as the ALI test. Under that test, “[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” (Model Penal Code (Official Draft 1962) § 4.01.) This test alters the test for insanity in at least two major respects. First, it does away with the all-or-nothing language of M’Naghten, and replaces it with a less stringent standard of substantial capacity. Second, it adds a volitional prong to the test by requiring the capacity to conform to legal requirements….

The ALI test was itself rejected four years later when the people exercised the legislative power through the retained right of initiative by enacting Proposition 8 at the June 1982 Primary Election. Among other things that measure enacted Penal Code § 25. For the first time in California’s history, the defense of insanity was statutorily defined. Subdivision (b) of § 25 now provides: “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”

Although the insanity provisions of Proposition 8 are couched in the language of M’Naghten, the conjunctive “and” is used rather than the disjunctive “or” between the two prongs of the test. Defendant argues that Proposition 8 was not intended to create a new test of insanity, but was only intended to abrogate the decision in Drew and to return to California’s version of the M’Naghten right and wrong test for criminal insanity. For reasons we shall explain, we agree.

[The court explained that confusion had arisen because trial courts sometimes spoke of the definition of sanity, and in other cases, of the definition of insanity. One formulation required “and”; the other required “or.”] [As put in People v. Wolff,] “The test of sanity is this: First, did the defendant have sufficient mental capacity to know and understand what he was doing, and second, did he know and understand that it was wrong and a violation of the rights of another?” (italics in original.) As can be seen, this test of sanity uses the conjunctive “and” construction. Conversely, the test of insanity necessarily must use the disjunctive “or” form. In order to be sane, “’the defendant must be able to know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense.”’ (Ibid., italics in original.) Thus if a defendant knows and understands the nature and quality of his act but does not know it is wrong, he is, by definition, insane. Hence the reciprocal tests of sanity and insanity were correctly stated in CALJIC No. 4.00 (3d ed. 1970): “If you find that the defendant was capable of knowing and understanding the nature and quality of his act and, in addition, was capable of knowing and understanding that his act was wrong, you will find that he was legally sane. However, if you find that the defendant was not capable of knowing or understanding the nature and quality of his act, you will find that he was legally insane; or, if you find that he was incapable of knowing or understanding that his act was wrong, you will find that he was legally insane.” The confusion over the correct usage of the conjunctive/disjunctive form of the M’Naghten rule thus arises from the failure to distinguish between the alternative definitions of sanity and insanity. This not uncommon confusion is evident in the Proposition 8 formulation of the M’Naghten test. We accept this blurred statement for what it appears to be, a careless draft, rather than divining in it some inexplicable regression by California’s citizens to medieval barbarism.

We do not lightly disregard the fact that the word “and” is used in the statute. Nevertheless, “the word ‘or’ is often used as a careless substitute for the word ‘and’; that is, it is often used in phrases where ‘and’ would express the thought with greater clarity.” … Where, as here, we are concerned with a measure adopted by the people through the initiative power, it is appropriate that the purpose of the measure be determined by reference to the language used, the ballot summary, the argument and analysis presented to the voters, and the contemporaneous construction by the Legislature.

… Proposition 8 was … intended to serve as a deterrent to criminal behavior. Deterrence was the precise reason our courts refused to adopt the irresistible impulse theory before Drew… But this purpose of deterrence would not be served by the abrogation of the M’Naghten test as well. This is because the restraint of law is dependent upon the ability of the individual to make a choice between right and wrong, and a person who cannot understand right and wrong cannot make such a choice. … Thus, as the Supreme Court of Washington noted: “M’Naghten is preferable to the American Law Institute test in that the M’Naghten rule better serves the basic purpose of the criminal law-to minimize crime in society. … [W]hen M’Naghten is used, all who might possibly be deterred from the commission of criminal acts are included within the sanctions of the criminal law.” State v. White (Wash. 1962).

The primary means by which Proposition 8 deters crime is through punishment. … The criminal law has long been based upon the concept of freedom of choice and adherence to the M’Naghten test has been based upon the refusal of the courts to accept the proposition that a person who knowingly commits a wrongful or criminal act should not be held accountable. But the M’Naghten test recognizes that those who are incapable of understanding the wrongfulness of their conduct have no opportunity of choice and cannot harbor an evil intent or mens rea….

It can thus be seen that the purposes of Proposition 8 would be served by the abrogation of Drew, but not by the abrogation of M’Naghten….

Proposition 8 was passed by the electorate on June 8, 1982, and became law the following day. On that day the Attorney General [explained the new law]: “Essentially, this restores the traditional M’Naghten rule as to insanity, which was overturned by the California Supreme Court in People v. Drew (1978). While ‘and’ is used between the two phrases, although ‘or’ was used in the former test, there appears to be little practical difference between the former version of M’Naughton and the new structure.” We agree with this assessment that the new statute “restores the traditional M’Naghten rule.”

 … For all of these reasons, we decline to interpret the statute as enacting a new drooling idiot test in place of the century old M’Naghten standard merely because it uses the single, and often misused, conjunctive “and.” That conjunctive is too thin a reed to support such a massive doctrinal transformation.

In this case in addition to the briefs from defendant and the People we have accepted amicus curiae briefs from the State Public Defender and the California Attorneys for Criminal Justice in support of defendant, and from the Criminal Justice Legal Foundation in support of the People. It is significant that all of the parties who have submitted briefs are in agreement that the insanity provisions of Proposition 8 were intended to abrogate Drew and return to the traditional M’Naghten standard. While we are reluctant to decide a matter of statewide significance based upon a concession of the parties, in this case our independent research convinces us that this position is sound. Accordingly, we hold that § 25(b) reinstates the California M’Naghten right and wrong test as the standard for the insanity defense in this state.

Since we conclude that Proposition 8 and § 25(b) abrogate the Drew decision and return California to the right and wrong standard of criminal insanity, it is unnecessary for us to consider the contentions that a stricter standard would violate the constitutional requirement of due process and the prohibition against cruel and unusual punishment. The right and wrong test passes constitutional muster. … We turn then to a consideration whether defendant is entitled to a finding of not guilty by reason of insanity.

Defendant contends the People are collaterally estopped to deny that she was insane [because she] was found to have been legally insane [in an earlier proceeding regarding an arson charge]. We reject [this] contention…. The issue in an insanity trial is whether the defendant, at the time of the commission of the offense, could appreciate right and wrong in relation to the very act with which she is charged. Whether defendant could appreciate the wrongfulness of her conduct in relationship to an arson some days before this incident is not determinative of her sanity in this case and hence poses a different issue in a different controversy. As the psychiatric testimony in this case established, defendant’s … mental capacity at one point in time is not necessarily indicative of her capacity at another time. In short, the sanity issue decided in the Placer County prosecution is not identical to the issue posed in this case because proof of insanity on one day is not proof of insanity on another.

The People, while agreeing that § 25(b) reinstates the M’Naghten standard, urge that the two prongs of the M’Naghten test are really the same thing. As our earlier discussion forecasts, we must reject this contention. A person who is capable of understanding the nature and quality of her action is not necessarily capable of appreciating the wrongfulness of her conduct. The evidence in this case illustrates this truism. There was no real evidence that defendant could not understand the nature and quality of her act. From her testimony it is clear that she was aware that she was driving her car, was being followed by the gas station attendant on his motorcycle, and that she was entering an intersection on a red light. However, the psychiatric testimony and defendant’s own recollection supported the claim that she was incapable of appreciating the wrongfulness of her conduct.

The trial court rejected the insanity defense, but in doing so it expressly found that defendant met the second prong of the M’Naghten test because she was incapable of distinguishing between right and wrong at the time of the incident. Since this finding established insanity under the M’Naghten test, defendant is entitled to a judgment of not guilty by reason of insanity.

The judgment is reversed and the cause is remanded to the trial court with directions to enter a judgment of not guilty by reason of insanity and to take such further proceedings as are required by law.

EVANS, Acting P. J., dissenting.

…The text of § 25(b) demonstrates that the initiative enacted by the People imposes a far more stringent standard which requires proof that the accused suffered from both aspects of the MNaghten test.

Viewed from any intellectual position, the harshness of the result extracted by the clear, unambiguous language of the provisions of § 25(b) is apparent. However, that harshness does not rise to prohibitive constitutional dimension or compel a statutory change by judicial decision; the fact that the statute compels a harsh result does not render it ambiguous and subject to interpretation. Merely because the language used results in the imposition of a strict standard for the defense of criminal insanity, we may not be permitted to indulge a judicial preference and conjure a judicial amendment to the statute by construing “and” to mean “or.”

The terms “and” and “or,” clearly conjunctive and disjunctive, may have at times in the past been erroneously used interchangeably by careless courts; however, that circumstance does not permit us to be so presumptive as to conclude the people, by their initiative process, didn’t mean what they clearly stated, that the conjunctive rather than the disjunctive be required and both prongs of the MNaghten test be established in order to prove insanity as a criminal defense.

… Proposition 8 received widespread publicity. … Each voter was … provided written arguments [for and against] Proposition 8… In those documents the analysis by the legislative analyst described the test of insanity in the conjunctive and stated, “These provisions could increase the difficulty of proving that a person is not guilty by reason of insanity.” In the argument submitted to the voters in favor of Proposition 8 was the statement, “[Y]ou will limit the ability of violent criminals to hide behind the insanity defense, … Of those convicted of felonies, one-third go to state prison and the remaining two-thirds are back in the community in a relatively short period of time. There Is Absolutely No Question That the Passage of This Proposition Will Result in … More Criminals Being Sentenced to State Prison, and More Protection for the Law-Abiding Citizenry ….”

The defendant implicates the argument that the voters were misled or confused in requiring the more difficult standard of proving both prongs of the MNaghten test. Such an argument can only be based upon the improbable assumption that the people did not know what they were doing. In our judicial review, we should not lightly presume that the voters were unaware of the consequences of their actions in approving Proposition 8….

…I can find nothing in the statute, the entire initiative, the arguments presented in favor of, in rebuttal to, or in explanation of the text of the initiative, that would imply that the voters did not intend the conjunctive to be the requirement rather than by implication the disjunctive. Under the statute, criminally insane persons, that is those who know neither the nature of their act nor its wrongfulness, would presumably be unable to benefit from the punishment imposed by way of a criminal sentence or to be rehabilitated or deterred thereby. Conversely, persons who know the nature and consequences of their act, or know the act they are committing is wrong, could presumably benefit from or be deterred by the imposition of criminal punishment. As a result, the criminally insane as established under § 25(b) are different than the noncriminally insane with respect to the legitimate purpose of the law.

Since the defendant failed to establish by a preponderance of the evidence that she met both standards enunciated in the statute, I would affirm the judgment.

Notes and questions on People v. Horn

  1. Apparently, Daniel M’Naghten, the man who tried to kill the Prime Minister of England in 1843 and the man for whom the most common definition of insanity is named, was inconsistent with the spelling of his own name. Courts have been similarly inconsistent; older opinions sometimes refer to McNaughton, M’Naughten, or McNaughten. Whatever spelling is adopted, the underlying legal doctrine is the prevailing test for insanity in the United States: a defendant can be relieved of criminal liability on grounds of insanity if “at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, … he did not know he was doing what was wrong.” This test is often described as one that focuses on cognition, or the defendant’s knowledge of the nature or wrongfulness of his own acts.
  2. The “irresistible impulse” test adopted by some courts as an expansion of M’Naghten focuses on volition rather than cognition. The question is whether the defendant was “unable to choose between right and wrong, or [unable] to conform his conduct to the requirements of the law.” The Model Penal Code combined both the cognitive inquiry of M’Naghten and the volitional inquiry of irresistible impulse, but broadened both. Traditional interpretations of M’Naghten required a total failure of cognition (the defendant did not know his own acts or that they were wrong), and the irresistible impulse test required a total failure of volition (the defendant was “unable” to control his own conduct). In contrast, MPC § 4.01 allows a defendant to establish insanity by showing a lack of “substantial capacity” with regard to either cognition or volition:

Model Penal Code § 4.01. Mental disease or defect excluding responsibility

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

  1. People v. Horn concerns a new statutory definition of insanity, adopted as part of Proposition 8, that seems close to M’Naghten but uses the word “and” where M’Naghten used “or.” To require a defendant to show both prongs of the M’Naghten test, rather than just one, would significantly narrow the definition of insanity. The Horn court’s conclusion that the “and” was a drafting error and should be read as “or” was subsequently endorsed by the California Supreme Court in People v. Skinner, 704 P.2d 752 (1985).
  2. As of 2015, the majority of states and the federal government used some version of M’Naghten to define insanity. A minority of states use some version of the Model Penal Code’s definition, and just one state, New Hampshire, uses the Durham or “product” test described in People v. Horn. Four states have “abolished” the insanity defense altogether, as discussed below. For a history of insanity law and an overview of current law, with a specific focus on “deific decrees” or claims by a defendant that he acted under God’s command, see Rabia Belt, When God Demands Blood: Unusual Minds and the Troubled Juridical Ties of Religion, Madness, and Culpability, 69 U. Miami L. Rev. 755, 784 (2015).
  3. Insanity is usually understood as a true affirmative defense, meaning that a defendant can avoid criminal liability even if she had the mental state (and engaged in the conduct) specified in the charged offense. Betty Horn was convicted of vehicular manslaughter, a crime that required proof that defendant killed “the victim ‘without malice but with gross negligence … while driving a vehicle ….” In a footnote, the Horn court explained “the definition of gross negligence in vehicular manslaughter as ‘the failure to exercise any care, or the exercise of so little care that [the jurors] are justified in believing that the person whose conduct is involved was wholly indifferent to the consequences of his conduct and to the welfare of others.’” Could a defendant have the mens rea required for this offense and yet still be insane? The Horn court noted, “Presumably the trial court found that defendant failed to prove by a preponderance of the evidence that she was incapable of knowing or understanding that she was driving a motor vehicle with gross negligence.” Because the trial court had found that both prongs of M’Naghten were required for insanity, and the trial court found only one of those prongs (inability to know that one’s actions are wrong) to be established, the trial court rejected the insanity claim and convicted Horn. The appellate court held that only one prong of M’Naghten need be established and reversed Horn’s conviction, as you know, but this issue illustrates the close connection between insanity claims and mens rea inquiries.
  4. Given the close connection between a claim of insanity and a claim about one’s mental state, a few states have abolished a separate affirmative defense of insanity altogether. Under “the mens rea approach,” as it sometimes called, a state allows a defendant to introduce evidence of mental disease to show that he or she lacked the mental state required for the charged offense. But evidence of mental disease or defect is not otherwise admissible. In Kahler v. Kansas, 140 S.Ct. 1021 (2020), the U.S. Supreme Court considered and rejected a constitutional challenge to the mens rea approach. The defendant had argued that the Due Process Clause of the federal constitution was violated if he was punished despite a mental illness that prevented him from distinguishing right from wrong. The court held that the Constitution did not require adoption of the M’Naghten rule or any specific definition of insanity:

[J]ust decades ago Congress gave serious consideration to adopting a mens rea approach like Kansas’s as the federal insanity rule. See United States v. Pohlot (C.A.3 1987). The Department of Justice at the time favored that version of the insanity test. Perhaps more surprisingly, the American Medical Association did too…. Although Congress chose in the end to adhere to the M’Naghten rule, the debate over the bill itself reveals continuing division over the proper scope of the insanity defense.

Nor is that surprising, given the nature of the inquiry. As the American Psychiatric Association once noted, “insanity is a matter of some uncertainty.” Across both time and place, doctors and scientists have held many competing ideas about mental illness. And that is only the half of it. Formulating an insanity defense also involves choosing among theories of moral and legal culpability, themselves the subject of recurrent controversy. At the juncture between those two spheres of conflict and change, small wonder there has not been the stasis Kahler sees—with one version of the insanity defense entrenched for hundreds of years.

And it is not for the courts to insist on any single criterion going forward. We have made the point before…. Just a brief reminder: “[F]ormulating a constitutional rule would reduce, if not eliminate, [the States’] fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold.”  Or again: In a sphere of “flux and disagreement,” with “fodder for reasonable debate about what the cognate legal and medical tests should be,” due process imposes no one view of legal insanity.  Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law.

We therefore decline to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later.

Kahler v. Kansas, 140 S.Ct. at 1037.


  1. [Fn. 5 by the court:] While the portion of section 35.15(2)(b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate “retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general “necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2)(b).
  2. [Fn. 1 by the court:] For example, the “true man” doctrine basically provides that “an individual need not retreat, even if he can do so safely, where he has a reasonable belief that he is in imminent danger of death or great bodily harm, is without fault, and is in a place that he has a right to be. The rationale behind this rule comes from a policy against making a person act in a cowardly or humiliating manner.” State v. Renner, 1994 WL 501778....
  3. [Fn. 1 by the Court:] Title 18 U.S.C. § 751(a) provides: “Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.”
  4. [Fn. 3 by the Court:] Respondents asked the District Court to give the following instruction:

    “Coercion which would excuse the commission of a criminal act must result from:

    “1) Threathening [sic ] conduct sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
    “2) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
    “3) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
    “4) The defendant committed the act to avoid the threathened [sic ] harm.”
  5. [Fn. 9 by the Court:] ... Our holding here is a substantive one: an essential element of the defense of duress or necessity is evidence sufficient to support a finding of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force. As a general practice, trial courts will find it saves considerable time to require testimony on this element of the affirmative defense of duress or necessity first, simply because such testimony can be heard in a fairly short time, whereas testimony going to the other necessary elements of duress or necessity may take considerably longer to present....