By: Eugene R. Milhizer
This article traces how the criminal defenses of justification
and excuse have come to be viewed as two almost interchangeable
means to the same end-the acquittal of a defendant notwithstanding
that the prosecution had established all the elements of proof
beyond a reasonable doubt. The differences between
justification and excuse have often been misunderstood or ignored
by courts, commentators, legislators, and even headnote
writers. The thesis of this article is that modern criminal
law systems must preserve-and, to the extent necessary,
rediscover-a clear distinction between justification and excuse
defenses, based upon intuitively understood and transcendent
conceptions of these principles, which are applied in a systematic
and coherent fashion.
. . . .
The author posits that lawmakers should seek to achieve good
policy by prudentially expressing immutable conceptions of
justification and excuse in their criminal codes and that judges
ought to interpret exculpatory defenses consistent with this
over-arching legislative intent. Furthermore, he is of the
belief that prosecutors should exercise their discretion, and
defense counsel should provide their advice and representation,
with reference to these normatively based defensive theories.
Finally, he offers his view that jurors, notwithstanding an
occasional need to nullify, ought to decide whether to convict or
acquit using these same common sense criteria. The author
believes that this approach would actually and perceptibly help
tether the law to transcendent normative principles, and thereby
elevate society's moral conscience and enhance its respect for the
law. This approach would serve to dignify the individual,
legitimize the positive law, and promote the common good.
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