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S ECTION 17: J USTIFICATION /L ESSER E VILS D EFENSE N OVEMBER 14, 2006 P RIMARY C ASE IN S ECTION : I SRAELI G ENERAL S ECURITY S ERVICE Notes: - Conduct and its harmful consequences are justified - “Choice of evils” justification o Necessity - Defense requires: o Harm or evil sought to be avoided by conduct is greater than that sought to be prevented by the law defining the offense charged - Defensive force justifications: o Some limited degree of force commonly permitted If it is necessary to protect property o Societal interest in maintaining a right to hold personal property o Defending against unlawful force: Defense of self Defense of others Defense of property - Public authority justifications o Force furthers effective criminal justice and effective exercise of judicial authority o Need not be triggered by threat from another - Overview of Defenses: o Negated element defense: D is able to establish that the prosecution has failed to prove an element of the crime Ex. any crime in which prosecution fails t prove all elements o Mitigation defense: D is able to establish that despite the prosecution having proved all elements of a crime the statute provides for mitigation upon the establishment of specific facts or conditions Ex. Murder under extreme emotional disturbance o Justification Defenses Where harm is unreasonably unavoidable, we empower people to intentionally break the law Ex. Self-defense, lesser evils o Excuse Defense: Despite the commission of a crime, the Defendant is excused b/c of some existing fact or condition 1
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Ex. insanity, duress o Non-exculpatory defenses: Societal policy is advanced by giving a defense to admittedly culpable conduct Ex. Diplomatic immunity, sovereign immunity - Lesser evils, 3.02 o Must be a harm or evil to be avoided which often can be viewd as a societal interest to be furthered o Response conduct must be necessary to avoid the threatened harm or evil o Response conduct must be less of a harm or evil than that to be prevented - Self-defense, 3.02 o Must be a threat of “unlawful” force (3.11(1)) o Response conduct must be immediately necessary to defend against the threatened unlawful force o Use of deadly force subject to specific limitations - Special Responsibility, 3.08 o Must be: In most instances a specially authorized person, and The needs to protect or advance one of the enumerated societal interests o Response conduct must be necessary to promote the special interests o Special limitations on the harm that may be caused are provided with regard to each special responsibility Key Facts: - Israel establishes the General Security Service (GSS) to prevent terrorist attacks by Palestinian groups - GSS shows moderate success o Prevented 10 attempted car bombings in 1995, 7 attempts to kidnap soldiers, several attempted murders o Arrest of terrorist group members o Foiled numerous suicide attacks in Jerusalem and Tel Aviv - GSS detains and questions alleged members of various radial or militant
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