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Attack on Self-Defense

NCJ Number
American Criminal Law Review Volume: 47 Issue: 1 Dated: Winter 2010 Pages: 57-89
Reid Griffith Fontaine
Date Published
33 pages
This article examines the nature and structure of self-defense arguments used in self-defense cases.
In the examination of Anglo-American criminal law theory over the past several decades, discussion has continued regarding the distinction between justification and excuse in defense doctrines. Self-defense is generally regarded as a justification and the author argues that self-defense as justification requires both objective and subjective factors. This article seeks to clarify the nature and structure of self-defense as justification and to present the objective and subjective factors that should be used to frame self-defense killings. In addition, the author presents arguments that in cases of supposed "self-defense" that are based on mistakes of fact, the use of self-defense cannot be justified and that a new separate defense, called mistaken self-defense, should be recognized. The article is divided into four major sections. Section I reexamines the distinction between justification and excuse as used in criminal law, while Section II discusses self-defense as a legitimate justification. In Section III, the author discusses the argument that mistaken self-defense is not a justification, but rather an excuse, and presents the three-requirement framework for self-defense as justification. Section IV examines in greater detail, the argument of mistaken self-defense and other "defense-related" defenses.


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