Justification, Excuse or Mitigation
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Justification, Excuse or Mitigation

Justification, Excuse or Mitigation

Lets do some housekeeping before we move on to our justification, excuse, and mitigation.  You are faced with a fact pattern where you know your in Criminal Law, what do you do first?

Duh, read the call of the question; but then what.  First we know we have to start with a homicide; the killing of another human being.  Ok, do we have a dead body?  Yes, great, now were on the criminal homicide trail!  After finding the dead body do we jump right into malice?  It depends, did our dead body come from the acts of the person we are discussing in our call?  If so then this makes the jump into malice easy, if not then don’t forget to cover causation before moving on.

After clearing up all the causation issues then you can get into malice.  For more on malice see our article here.

WRITERS TIP   When writing your rule statement for malice, just like other issues you will discuss in other theories, always write all the theories out to show the graders you know what you are talking about, “Malice may be established by 1.) intent to kill 2.) intent to inflict serious bodily injury 3.) wanton and willful disregard/Depraved Heart and 4.) felony murder.  If you don’t see Wanton and Willful as a form of malice this doesn’t mean leave it out of your rule statement, it just means you don’t have to discuss it in your malice section because it isn’t applicable.  But you do want to keep it in your rule statement to show the graders you know the rules and you are applying them correctly.

Where To Go

After you have covered whether you have malice and if so what type, its time to look at whether the facts present you a discussion on Justification, Excuse, or Mitigation.

Do not be too eager to jump straight into your degree of murder before clearly walking through your justifications, excuse, or mitigation.  This fatal error will make your essay hard to follow, redundant, and potentially lose points.

Think about it, you have a fact pattern that speaks to your typical Heat of Passion scenario.  You cover homicide, causation, your malice, then go straight into degree and then bring up mitigation?  That would be crazy and wouldn’t make any sense.  Before you can get to degree you have to cover your mitigating factors, excuses, and justifications; these play into your degree.

Do something that pushes your boundaries, something that you wouldn’t ordinarily do. Take a calculated risk and allow yourself to crumble a little.


Justification takes a homicide and makes it no crime.  Under justification we have crime prevention, self defense, defense of others, and defense of property.

Crime Prevention

A defendant may use deadly force if necessary to prevent the escape of a felon or to prevent the imminent commission of a dangerous felony.  Dangerous felony means that the felony must be a felony that creates a serious risk of death or bodily injury; your BARRK crimes.  This is the modern majority though, the common law rule was that deadly force may be used even if the felony was not dangerous.

Self Defense

Self defense is lawful when the victims initial attack is unlawful and deadly and the defendants response is reasonable.  You can only use deadly force in response to a deadly attack.  Here is where the old adage “Don’t bring a gun to a knife fight” should really have applied instead of school yards!  The attack on the victim must also be unlawful; this speaks for itself.

Self Defense is not as clear cut as many think and we as 1L’s know this.  The person who initiates the attack is the initial aggressor and may not claim self defense when the victim defends himself in a deadly response… but….there is always a but.  Where the initial aggressor withdraws from the fight and communicates to the victim of the withdraw and the victim continues to use deadly force, the initial aggressor may now have the right to use deadly force in self defense.

The best way to illustrate this is to think of Crocodile Dundee being mugged.  Some criminal approaches Crocodile Dundee in an alley and pulls a knife and tells Crocodile Dundee to give him his wallet or he will kill him.  Crocodile Dundee pulls out his famous much larger knife and begins stabbing at the mugger.  At this point Crocodile Dundee is justified in using deadly force in self-defense.  

If after Crocodile Dundee pulls his knife the mugger screams like a little girl, “No please don’t hurt me I quit” and throws down the knife but Crocodile Dundee keeps stabbing the mugger so the mugger pulls a gun out of his pocket and shoots Crocodile Dundee the mugger may now be able to claim self-defense.

Defense of Others

Defense of others allows for lethal force where necessary to defend a third person who is facing an immediate and wrongful deadly attack; similar to self defense. Just like self defense, defense of others requires a showing of reasonableness.  The showing of reasonableness is shown through the necessary element.  The defendants use of deadly force must be necessary to protect the third person from the unlawful deadly attack.  The rule of proportional force is the same for defense of others as well.

The majority rule for defense of others is based on reasonableness.  If the defendant reasonably but mistakenly uses deadly force against the victim to protect the third party but the victim is actually the aggressor or felon or something, then the reasonable but mistaken belief will suffice.

The minority rule asks you to stand in the victims shoes.  This means that the defendant has the same rights to use deadly force as the victim; therefore if the third person, the person being defended is really a felon and the other party is a police officer, the defendant could not use defense of others because the victim could not.

Defense of Property

You are never justified in using deadly force to protect property.  You can’t use Acme snares, trip wires, mechanical devices, etc. in protection of property.  However, the home is always a sacred place, the home is the castle.  Modern law allows for the justification of deadly force where the occupants of the home/dwelling are threatened, but once again, you still cannot use deadly force to protect just property.  The law values human life over property; makes sense.


A homicide that is excused relieves the defendant from criminal liability but is distinguished from a justification as a justification means no crime.  Excuse does not mean no crime it just means the defendant will not be held criminally liable.  This is a heavily tested subject on the FYLSE in both MCQ’s and Essays.


If at the time of the homicide the defendant is insane no criminal liability will be imposed upon the defendant.  Insanity comes in many varieties; M’Naughten, Irresistible Impulse, and Model Penal Code (MPC) Test (just to mention a few).   The majority of jurisdictions use the M’Naughten rule so its important to know this one inside and out, but it is also worth more points to bring the Irresistible Impulse test and the MPC test.

M’Naughten is the majority.  The Test for insanity under M’Naughten is also known as the right or wrong test.  This test focuses on the defendants reasoning abilities and asks whether the defendant did not understand the nature and quality of the act or if he did not know the act was wrong.

The Irresistible Impulse test has often been called the M’Naughten plus test.   The Irresistible urge test focuses on the defendants volitional abilities.  The Irresistible Urge Test asks did the defendant know the nature and quality of the act, or did he not know the act was wrong, or if the defendant knew both the nature and quality and the act was wrong, was he unable to control his conduct to conform his conduct to the law.

The MPC also has another name: the Substantial Capacity Test.  The MPC, like the Irresistible urge test, looks at the mental and volitional abilities of the defendant.  The MPC holds that if at the time of the homicide the defendant lacked the substantial capacity to appreciate the wrongfulness of the conduct or to conform his conduct to what the law requires he would be excused.


At Common Law children were excused from homicides if they were under the age of 7, between 7 and 14 there is a rebuttable presumption, and over 14 your not a child. Under modern law each jurisdiction has its own specifications as to age but for the FYLSE these are the ages and elements to remember and apply.


Under the theory of intoxication there is voluntary intoxication and involuntary intoxication.  Involuntary intoxication occurs when the defendant does know know what he ingested or ingests a substance prescribed by a doctor but does not know the side effects.  Involuntary intoxication will excuse a homicide if at the time of the homicide the defendant was intoxicated to the same mental impairment level as insanity.  Voluntary intoxication does not excuse homicide, drop the mic.


Under Common Law duress was no defense to homicide but some modern jurisdictions allow it to be used when a reasonable person would have killed someone to avoid his own death.  See more on this below in the mitigation discussion.

WRITERS TIP  If you think that duress could be brought up bring it up.  State “Under Common Law duress was not a defense to a homicide but some modern jurisdictions allow for it as a defense with a showing of a reasonable person would have killed another to avoid his own death.  Here, Bob killed Tammy because the kidnapper told him if he did not kill Tammy he would die, therefore he killed Tammy.  At Common Law this would not be a defense.”


Unlike excuse or justification, mitigation only reduces the homicide to voluntary manslaughter.  The most commonly tested mitigating factor is provocation, often called Heat Of Passion.


A murder, notice we say murder here and not homicide as we have above, committed while the defendant suffered from adequate provocation, where the defendant was overcome by emotion and did not have time to “cool off” before commission of a homicide.  The elements of Heat of Passion are the provocation, no cooling period, and the killing of the provoker.  

The act of the provocation must be one that would have caused a reasonable person in the defendants situation to lose control.  The passion must be objectively reasonable and must be actually experienced by the defendant.

The defendant must not have a cooling off and the defendant must not have actually cooled off.  Finally, the defendant must kill the person who provoked him, however, remember the defendant can still have a reasonable but mistaken belief and kill the wrong person.

Imperfect Self Defense

This comes into play when you have self defense, see above, but the justification fails because the defendant acted unreasonably but still in good faith.  This is often shown where one person “over reacts”.

WRITERS TIP  If you find Self Defense as a justification, see discussion above, then you will still want to argue imperfect self defense as well.  Remember, you are always arguing both sides and the reasonable person is where all arguments start.


As we said above, Common Law did not allow duress as a defense to homicide however modern trends allow for murder to be mitigated to to voluntary manslaughter if a reasonable person in the same situation would have killed.

Diminished Capacity

In a majority of jurisdictions a defendant who suffers diminished capacity short of insanity will not be able to mitigate a murder to manslaughter.  However, if diminished capacity does appear in a fact pattern remember it may be applicable to negate an intent requirement, the mens rea.


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