Offenses and Defenses – 6895
The criminal law recognizes a number of defenses, which enable a person who has committed an offense to avoid conviction and punishment. A defendant who intentionally killed might still secure an acquittal on a murder charge by pleading that he acted in self-defense, or that he was insane at the time; or he might secure conviction on a lesser charge of manslaughter by pleading that he acted under extreme provocation. A defendant who has intentionally destroyed another’s property might secure an acquittal by pleading that she acted under duress, or out of necessity. Some have argued that the law should recognize a wider range of defenses: for instance, that a defendant who has suffered serious social disadvantage should have a defense for at least some kinds of crime. In this seminar course we will embark on an analytical and critical examination of such existing and proposed defenses. Questions to be asked about each defense will include— • Just what are the contours and structure of the defense as it now exists (or, in the case of a proposed new defense, as it is intended to exist)? • Should the law recognize such a defense? If so, why? • Are there ways in which the defense should be revised? If we are to understand defenses, however, we will also need to tackle some broader questions about the structure of the criminal law. In particular— • How can we distinguish offense elements from defenses? Is the distinction simply a useful expository device, or does it mark a significant difference between different dimensions of criminal liability? • Whereas the burden lies on the prosecution to prove all the elements of the offense, the law might shifts the burden of proving a defense (an “affirmative defense”) onto the defendant. Can such a shift of burden be justified? Is it consistent with the presumption of innocence? • Theorists often distinguish, among defenses, justifications from excuses. How can we best draw that distinction? Does it help us to understand the character of defenses? We will need to address these questions as we study the individual defenses. The class will meet for twelve hours, concentrated in the latter part of the semester, starting in week beginning March 23; in the earlier part of the semester, students are expected to do work for the course by reading from a list of sources I will provide and developing the projects that will become their term papers. I will provide supervision and guidance from a distance (I will be in Edinburgh during the first half of the semester). Here’s how it will work— • For the first half of the semester, I will provide a set of topics and reading lists, partly on the individual defenses and partly on the broader questions noted above. Students will need to make a start on those broader questions, and choose a particular defense as the focus for their project. I will offer advice, supervision and guidance by email, and through TWEN-based discussions forums in which students will be expected to participate. • Each student will pick a particular defense (either an existing defense or a proposed new one) to research: depending on the number of students in the class, it might be possible for students to work collaboratively on projects if they wish to. • Face-to-face classes will start in the week beginning March 23: we will meet on Fridays from 1.25 to 3.25, and for another one-hour class each week at a time to be decided after consultation with those taking the course. Some of these classes will focus on topics related to the theme of the course, but some will be devoted to student presentations of their projects and class discussion of the presentations. • Students will then write up their projects as their term papers; I will arrange individual consultations to discuss draft papers. Term papers should be about 25 pages long. Course grades will be based primarily (80%) on the term paper, but partly (20%) on the student’s presentation to the class. Although this is listed as a two-credit course, arrangements can be made for students who wish to take it as a three-credit course. This will involve writing a longer term paper (40 pages rather than 25), based on a substantially larger amount of research. Any student wishing to pursue this option should contact me before the end of the year. A detailed syllabus, with suggested readings on offenses and defenses and on particular defenses, will be provided before the start of semester.