Course Details

Description:

Criminal codes, textbooks and theorists often distinguish offenses from defenses. It is for the prosecution to prove that the defendant committed the offense charged — that, for instance, he intentionally injured another person or damaged another's property; but it is then open to the defendant to offer a defense for his commission of the offense — that, for instance, he acted in self-defense or under duress. The first question for this seminar concerns the significance of this distinction. Is it simply a useful expository device, or a convenient way of allocating persuasive and evidential burdens between the prosecution and the defendant? Or does it, as some theorists argue, reflect something important about the structure of criminal law and the logic of criminal responsibility? This discussion will lead us into a range of more particular questions, including —

• How should offenses and defenses be distinguished: how are we to decide whether a factor that is relevant to on liability should be counted as an element of the offense or as a matter of defense? Why (if at all) does this matter?
• Is it helpful to distinguish, among defenses, justifications from excuses? How can they be distinguished? Which defenses should count as justifications, which as excuses? Do we need more than these two categories to capture the full range of defenses?
• As traditionally interpreted, the presumption of innocence requires the prosecution to prove both actus reus and mens rea, as elements of the offense. Sometimes, however, the onus is laid on the defendant to prove, or to offer evidence of, lack of mens rea as a defense. Can this ever be justified — or does it violate the presumption of innocence?
• Our existing criminal laws recognize a limited range of defenses: should they recognize others — for instance a defense of "rotten social background" or of unjust disadvantage?

In pursuing these questions, we will examine a range of existing criminal defenses, including e.g. duress, necessity, self-defense, insanity, provocation ("heat of passion"; "extreme mental or emotional disturbance"), as well as some proposed new defenses. The course will start on 6 March, and will meet for thirteen three-hour classes on Tuesdays and Thursdays, 4.05–7.00. However, students will need to do a considerable amount of preparatory reading before classes begin: reading lists will be sent round before the start of semester.

Students will be expected to make at least one presentation (oral or written, as they choose) during the semester, and to submit two research papers.