Defenses: self-defense, necessity, duress, insanity and intoxication

Every lesson so far has asked whether the elements of an offense are proved. This lesson asks a different question: even when the prohibited act and the guilty mind are both there, does the law excuse or justify what the person did? Professor Desjardins tells the class about a call early in his career. A woman had stabbed her husband in the kitchen of their apartment. She had the knife in her hand when he arrived, and she said so. On the elements alone it was a felonious assault. But the apartment also held the evidence of years of abuse, a fresh injury on her neck and a 911 recording that captured the husband's threats seconds before the stabbing. The case was never charged. Officers do not decide defenses, which are for the prosecutor and the courts, but they must recognize them, because the evidence that supports a defense is gathered at the scene or not at all, and prosecution charging standards take likely defenses into account.

Justifications and excuses

Defenses fall into a few families. Some deny an element: a mistake of fact, from lesson 4, can show the accused lacked the required mental state, and an alibi denies the act. Justifications say the act was right or at least permitted in the circumstances, as with self-defense, where society accepts the use of force to repel an attack. Excuses say the act was wrong but the person should not be blamed, as with duress, where a threat leaves no realistic choice, or mental disorder, where illness prevents the person from understanding the act. The distinction matters because justified acts, unlike excused ones, can be lawfully resisted only in limited ways and do not carry the same moral weight. In Ohio, most defenses are affirmative defenses that the defendant must prove by a preponderance of the evidence under R.C. 2901.05, including duress, necessity and insanity. Self-defense is now the main exception: since March 2019, once the evidence tends to support self-defense, the prosecution must prove beyond a reasonable doubt that the accused did not act in self-defense.

Self-defense, stand your ground and the castle doctrine

Ohio's self-defense law was changed twice in recent years. Under R.C. 2901.05, as amended in 2019, if there is evidence that tends to support that the accused used force in self-defense, defense of another or defense of residence, the prosecution must prove beyond a reasonable doubt that the accused did not. Under the traditional Ohio test for deadly force, the person must not have been at fault in creating the situation, must have had a bona fide belief that he or she was in imminent danger of death or great bodily harm and that deadly force was the only means of escape, and the force must have been reasonable. Since April 2021, R.C. 2901.09 says a person has no duty to retreat before using force if the person is in a place where he or she lawfully has a right to be, and the trier of fact may not consider the possibility of retreat in deciding whether the force was reasonable. The castle doctrine, in R.C. 2901.05(B), presumes that a person acted in self-defense when using defensive force against someone who was unlawfully and without privilege entering, or had entered, the residence or occupied vehicle of the person using the force, though the presumption can be rebutted. Nondeadly force must be proportionate to the threat.

Ohio allows reasonable, nondeadly force to protect property, but deadly force solely to protect property is not justified. The castle doctrine covers the use of force against an intruder in the home because entry into a residence is treated as a threat to the people inside. The Supreme Court's emphasis in the Ohio cases on the accused's own role means officers should record how the encounter started, who escalated it, what each person said and any history between them.

Necessity and duress

Necessity in Ohio is an affirmative defense recognized by the courts: the defendant must show that the harm to be avoided was greater than the harm caused by breaking the law, that there was no adequate legal alternative, that the defendant did not create the situation, and that the harm was imminent. The Model Penal Code's choice of evils defense, in section 3.02, takes a similar approach. A driver who speeds to take a person in a medical emergency to hospital is the textbook case where the defense might succeed; protesters who break the law to draw attention to a cause almost always fail.

Duress in Ohio is an affirmative defense that applies when a person commits an offense because another person threatened imminent death or serious bodily harm, the person reasonably believed the threat, and there was no reasonable opportunity to escape. Ohio courts hold that duress is never a defense to murder, and it is not available to a person who recklessly placed himself or herself in a situation where coercion was likely, such as by joining a gang. The Model Penal Code, in section 2.09, uses a broader standard: whether a person of reasonable firmness in the actor's situation would have been unable to resist.

Insanity and competency

Ohio's insanity defense, in R.C. 2901.01(A)(14), says a person is not guilty by reason of insanity only if the person proves, by a preponderance of the evidence, that at the time of the offense, he or she did not know, as a result of a severe mental disease or defect, the wrongfulness of the act. Ohio follows a version of the M'Naghten test, and does not recognize an irresistible impulse or diminished capacity defense. A person found not guilty by reason of insanity is committed to the Ohio Department of Mental Health and Addiction Services if found to be a person with a mental illness subject to court order, and the trial court keeps jurisdiction for up to the maximum prison term for the offense. Competency to stand trial, under R.C. 2945.37, is a separate question: whether the defendant can understand the nature and objective of the proceedings and assist in the defense now.

For patrol officers, the important point is that the evidence of a person's mental state at the time of the offense is gathered by the first people on scene. Officers who take a person for emergency evaluation under R.C. 5122.10 should record exactly what the person said and did, how he or she appeared, and any statements about voices, beliefs or medication. Linh Tran asks whether that information will be used against the person. Professor Desjardins says it is used to find the truth, which sometimes supports a defense and sometimes undermines one, and that careful notes are fair to everyone.

Intoxication and automatism

Under R.C. 2901.21(E), voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Ohio therefore does not allow a defendant to argue that being drunk or high prevented him or her from forming purpose or knowledge, a rule the U.S. Supreme Court held to be constitutional for a similar Montana statute in Montana v. Egelhoff (1996). Involuntary intoxication, such as from a drink spiked without the person's knowledge, may still be raised. Automatism, covering involuntary conduct during a seizure, concussion or sleepwalking, negates the voluntary act requirement of R.C. 2901.21 discussed in lesson 3. For officers, this means recording a suspect's observed level of intoxication carefully: slurred speech, balance, the smell of alcohol, what the person said about consumption, and how he or she performed tasks, rather than writing simply that the person was drunk.

Entrapment and police conduct

Ohio follows the subjective test of entrapment, from Sorrells v. United States (1932) and State v. Doran (1983): the defense applies when the criminal design originates with the officials and they implant in the mind of an innocent person the disposition to commit the offense and induce its commission, so that the question is whether the defendant was predisposed to commit the crime. In Jacobson v. United States (1992), the Supreme Court held that the government must prove predisposition existed before government agents first approached the defendant. Entrapment is an affirmative defense that the defendant must prove by a preponderance of the evidence. Merely providing an opportunity to commit a crime, as in a reverse sting or an undercover purchase, is not entrapment. Officers' own use of force is governed by the Fourth Amendment reasonableness standard from Graham v. Connor (1989), covered in LES-204.

The class builds a checklist for the questions an officer should be able to answer in the notes whenever a defense may arise. Marco says it is the same idea as a pre-flight checklist: not deciding the outcome, just making sure nothing is missed.

# Which defenses do the scene notes need to address? (Ohio law, simplified)
notes = {
    "force or threat by complainant first": True,
    "accused statement about why force was used": True,
    "injuries photographed on both parties": True,
    "where it happened (residence, vehicle, public)": True,
    "weapon found and position recorded": True,
    "signs of intoxication described (not just 'drunk')": False,
    "statements suggesting voices or delusions": False,
    "threats made to the accused by a third person": False,
}
defenses = {
    "self-defense (R.C. 2901.05)": ["force or threat by complainant first", "accused statement about why force was used",
                                    "injuries photographed on both parties",
                                    "where it happened (residence, vehicle, public)",
                                    "weapon found and position recorded"],
    "intoxication (involuntary only)": ["signs of intoxication described (not just 'drunk')"],
    "insanity (R.C. 2901.01)": ["statements suggesting voices or delusions"],
    "duress": ["threats made to the accused by a third person"],
}
for name, needs in defenses.items():
    done = [n for n in needs if notes[n]]
    print(f"{name:32s} {len(done)}/{len(needs)} items recorded")
    for n in needs:
        if not notes[n]:
            print(f"    check: {n}")

self-defense (R.C. 2901.05)      5/5 items recorded
intoxication (involuntary only)  0/1 items recorded
    check: signs of intoxication described (not just 'drunk')
insanity (R.C. 2901.01)          0/1 items recorded
    check: statements suggesting voices or delusions
duress                           0/1 items recorded
    check: threats made to the accused by a third person

The output shows that the self-defense questions are covered but three other possible defenses are not addressed at all. Even if none of them turns out to apply, a note that the suspect showed no signs of intoxication, made no statements suggesting delusions and reported no threats from anyone else closes those questions for the prosecutor. Noting where the incident happened matters in Ohio, because a residence or occupied vehicle can trigger the castle doctrine presumption and a place where the person lawfully had a right to be removes any duty to retreat.