# Homicide defense--can you give any ol' reason? **URL:** \ **Category:** Factual Questions\ **Created:** [June 29, 2001, 2:26am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548 "2001-06-29T02:26:22Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [June 29, 2001, 2:26am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/1 "2001-06-29T02:26:22Z")
If you killed somebody and wanted to be wacky at your trial, could you use any of the following defenses–that is, attempt to persuade a jury of your peers that you are not guilty of a crime for any of these reasons? Would the judge disallow it, and if so, on what grounds? 1. He had it comin’, yerronner. (for whatever reason) 2. We were dueling. 3. Forsooth, we were engaged in trial by combat. 4. We were drunk and trippin’ south of the border, and my wife agreed to play William Tell, and it didn’t occur to me that I really shouldn’t be using a shotgun for that . . . 5. He was committing seppuku, and it was my job to cut off his head. ---
**Author:** ![Ike\_Witt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ike_witt/32/283_2.png) [@Ike\_Witt](https://boards.straightdope.com/u/Ike_Witt)\ **Post date:** [June 29, 2001, 3:13am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/2 "2001-06-29T03:13:39Z")
Your first example is based on the old “he needed killing” defense. It may have been tried as a defense, but it may also be a UL. It seems to me that pretty much every state makes it illegal to issue a challenge for a duel, or to accept such a challenge. This issue has been discussed here before so you may want to do a search on dueling. As far as the others, someone more learned than I will have to provide the answers. ---
**Author:** ![brianjedi](https://avatars.discourse-cdn.com/v4/letter/b/3be4f8/32.png) [@brianjedi](https://boards.straightdope.com/u/brianjedi)\ **Post date:** [June 29, 2001, 4:17am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/3 "2001-06-29T04:17:33Z")
Dueling in Kentucky will get you barred from just about every elected office. The oath of office for school board members up to representatives includes the question: “Have you ever fought in a duel?” It sounds strange, but it’s true. As far as using it for a murder defense, I don’t think that would work. Assisting in ritual suicide isn’t going to get you off either. ---
**Author:** ![brad\_d](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@brad\_d](https://boards.straightdope.com/u/brad_d)\ **Post date:** [June 29, 2001, 4:50am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/4 "2001-06-29T04:50:41Z")
Wow, **brianjedi** , that’s quite freaky. I found [here](http://www.lrc.state.ky.us/KRS/039A00/210.PDF) a copy of the oath given to “persons connected with disaster and emergency response organizations” in Kentucky, and you’re absolutely right. They must take it pretty seriously, too. The Oath is two paragraphs long. The first is pretty standard, and the second is **entirely** devoted to affirming that the office-taker has never fought in a duel. You’d think some other offenses would rank above duelling in rating specific mention in the oath of office… ---
**Author:** ![kdeustachio](https://avatars.discourse-cdn.com/v4/letter/k/87869e/32.png) [@kdeustachio](https://boards.straightdope.com/u/kdeustachio)\ **Post date:** [June 29, 2001, 5:22am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/5 "2001-06-29T05:22:39Z")
The underlying question is “Can you argue jury nullification in a murder trial?” Jury nullification is when the jury finds a defendant “not guilty” even though the facts and law show that a crime was committed. The purest form of this, I think, is to imagine the jury in their deliberation room and somebody says “well, I know he (the defendant) did it, but if I walked in on another man with my Lurleen, I’da shot the SOB, too. Not Guilty!” See also, “A Time to Kill” by John Grisham. My understanding is that arguing jury nullification is allowed in most courts, though this may be changing. In Washington, D.C. it is not (“We chained ourselves to the gate because of the fur seals!” will not fly in D.C.). That said, if arguing jury nulification is allowed, anything goes. It is (IMHO) the ultimate weapon of the people against the law, and a key value of trial by jury. If the jury thinks the law is stupid or unjust, sorry government, no conviction. Power to the people! On a related note, Duelling, inciting a duel, serving as a second, and concealing the existance of a duel are all prohibited by the Uniform Code of Military Justice. No oaths required. Kdeus Yes, I am. A military one, in fact. Yes, just like Harm on TV. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [June 29, 2001, 9:53am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/6 "2001-06-29T09:53:50Z")
In May 2001 the California Supreme Court ruled that judges can remove a person from a jury if they refuse to enforce the law, and a judge can order jurors to notify him/her if a juror seems to be ignoring the law. Sample article: [California Court: Judges Can Remove Jurors for Not Applying the Law](http://ap.tbo.com/ap/breaking/MGAH8QY6IMC.html) ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [June 29, 2001, 1:01pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/7 "2001-06-29T13:01:41Z")
> [@](#): > > \*Originally posted by Doghouse Reilly \* > \*\*If you killed somebody and wanted to be wacky at your trial, could you use any of the following defenses–that is, attempt to persuade a jury of your peers that you are not guilty of a crime for any of these reasons? Would the judge disallow it, and if so, on what grounds? > > 1. He had it comin’, yerronner. (for whatever reason) > > 2. We were dueling. > > 3. Forsooth, we were engaged in trial by combat. > > 4. We were drunk and trippin’ south of the border, and my wife agreed to play William Tell, and it didn’t occur to me that I really shouldn’t be using a shotgun for that . . . > > 5. He was committing seppuku, and it was my job to cut off his head. \*\* A few WAGs: It seems to me that if you were charged with first degree murder, arguments number 2,3, and 4 may be relevant. Of course, if those arguments succeeded, you would likely be convicted on the lesser offense of manslaughter. With respect to 1 and 5, you might be able to get evidence in, but I suspect the judge would charge the jury that the culpability and/or consent of the victim is irrelevant. (standard disclaimer about legal advice) ---
**Author:** ![evilhanz](https://avatars.discourse-cdn.com/v4/letter/e/ba8739/32.png) [@evilhanz](https://boards.straightdope.com/u/evilhanz)\ **Post date:** [June 29, 2001, 1:31pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/8 "2001-06-29T13:31:45Z")
> [@](#): > > \*Originally posted by kdeustachio \* > \*\*That said, if arguing jury nulification is allowed, anything goes. It is (IMHO) the ultimate weapon of the people against the law, and a key value of trial by jury. If the jury thinks the law is stupid or unjust, sorry government, no conviction. Power to the people! > \*\* Umm not true. If a competent judge is sitting on the bench, he/she can set aside the jury’s verdict if he/she believes that the prosecution did not meet their burden of proof or that the jury has ignored facts in evidence to acquit the defendent. I’m not sure about the exact particulars, but the buck certainly doesn’t stop with the jury. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2001, 3:50pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/9 "2001-06-29T15:50:58Z")
> [@](#): > > \*Originally posted by evilhanz \* > \*\* > > > [@](#): > > > > \*Originally posted by kdeustachio \* > > \*\*That said, if arguing jury nulification is allowed, anything goes. It is (IMHO) the ultimate weapon of the people against the law, and a key value of trial by jury. If the jury thinks the law is stupid or unjust, sorry government, no conviction. Power to the people! > > \*\* > > Umm not true. If a competent judge is sitting on the bench, he/she can set aside the jury’s verdict if he/she believes that the prosecution did not meet their burden of proof or that the jury has ignored facts in evidence to acquit the defendent. I’m not sure about the exact particulars, but the buck certainly doesn’t stop with the jury. \*\* Good grief! You are, in fact, not only not such about the exact particulars, but the exact generalities seem to elude you as well. A judge in a criminal case may not “set aside” a jury’s acquittal. Moreover, that acquittal serves as an absolute bar against any retrial on the charges in question. This is guaranteed by the Double Jeopardy clause of the Constitution. It is true that a judge may set aside a _guilty_ verdict and enter a judgement of acquittal if, as a matter of law, the prosecution failed to meet its burden of proof. He may similarly order a new trial, effectively setting aside the verdict, for any number of reasons. However, he may not disturb a ‘not guilty’ finding. In a _civil_ trial, the judge may enter a JNOV - a judgement nothwithstanding the verdict - if he feels the jury failed to do its job. He must base this decision on the law - that is, he may not invade the province of the jury and decide facts in a different way that the jury did, unless there is no credible support in the record for the jury’s finding. - Rick ---
**Author:** ![evilhanz](https://avatars.discourse-cdn.com/v4/letter/e/ba8739/32.png) [@evilhanz](https://boards.straightdope.com/u/evilhanz)\ **Post date:** [June 29, 2001, 4:02pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/10 "2001-06-29T16:02:49Z")
Bricker, you’re right. I certainly flubbed it. A not guilty verdict in a criminal case can not be overturned. (duh) 🙂 ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [June 29, 2001, 4:27pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/11 "2001-06-29T16:27:58Z")
> [@](#): > > \*Originally posted by Doghouse Reilly \* > \*\*If you killed somebody and wanted to be wacky at your trial, could you use any of the following defenses–that is, attempt to persuade a jury of your peers that you are not guilty of a crime for any of these reasons? Would the judge disallow it, and if so, on what grounds? > > 1. He had it comin’, yerronner. (for whatever reason) > > \*\* Well, in Texas it is quite possible that he had it comin’ would be a valid defense. You just have to establish within the law exactly why he had in comin’. Did guy that had in comin’ break into your house at night? Did you, or any other reasonable person, feel that he was an immediate threat to life and or limb? Was he trying to set your car on fire? Reasons such as “he was snoring really loud” wouldn’t get you very far. Marc ---
**Author:** ![blainer](https://avatars.discourse-cdn.com/v4/letter/b/a698b9/32.png) [@blainer](https://boards.straightdope.com/u/blainer)\ **Post date:** [June 29, 2001, 6:57pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/12 "2001-06-29T18:57:19Z")
BRICKER: I don’t doubt that you are correct, but can you provide an authority that says a judge may not overturn a jury’s verdict of not guilty in a criminal trial? Thanks . . . Must have slept through crim pro that day. LUCWARM: Why would the fact that someone was dueling or “engaged in trial by combat” lead to a charge of manslaughter? Thanks! ---
**Author:** ![BoBettie](https://avatars.discourse-cdn.com/v4/letter/b/4af34b/32.png) [@BoBettie](https://boards.straightdope.com/u/BoBettie)\ **Post date:** [June 29, 2001, 8:59pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/13 "2001-06-29T20:59:48Z")
Is the question: “Can I use this as a defense?” or “Will this work as a defense?” You can SAY anything. That doesn’t mean it’s a viable excuse. Here’s my (non-lawyer) opinion. \*\*1. He had it comin’, yerronner. (for whatever reason) \*\* Well, that depends on the reason you give. Was he threatening you with a gun, so you shot first? Was he caught raping your wife? Possibly a jury would find you not guilty. \*\*2. We were dueling. \*\* I guess that would depend on if the jury believed you. Was it an accidental shooting caused by the two of you horsing around? Or did you shoot the other guy and just say you were dueling. Either way, I would assume you would be charged with some sort of reckless charge: "18-6408. RECKLESS ENDANGERMENT. (1) A person is guilty of reckless endangerment when he or she recklessly: (a) Engages in conduct that creates a substantial risk of death or serious physical injury to another person; or, etc. **3. Forsooth, we were engaged in trial by combat.** I’m not sure what this means. Is the person claiming to be of another time period and engaged in a genuine act of war? (delusional, insane?) or being a smartass? Either way, I doubt you would get let go. \*\*4. We were drunk and trippin’ south of the border, and my wife agreed to play William Tell, and it didn’t occur to me that I really shouldn’t be using a shotgun for that . . . \*\* Once again, I would think that if not a murder charge, a reckless endangerment charge would be leveled. Did you get drunk and angry, then shoot him? Or did you get drunk and do something incredibly stupid and shoot him? If the latter, it could make for a manslaughter charge. “MANSLAUGHTER - The unlawful killing of a human being without malice or premeditation, either express or implied; distinguished from murder, which requires malicious intent.” > **[Legal Definition of Manslaughter: What You Need to Know](https://www.upcounsel.com/legal-def-manslaughter)** > > Manslaughter is an unlawful killing of a human being without premeditation and is distinguished from murder in that there was no malicious intent. **He was committing seppuku, and it was my job to cut off his head.** > [@](#): > > All the matters relating to the act was carefully prescribed and carried out in the most meticulous manner. The most conspicuous participant, other than the victim, was the kaishaku (kie-shah-kuu), or assistant, who was responsible for cutting off the victim’s head after he had sliced his abdomen open. The was generally a close friend or associate of the condemned. [http://victorian.fortunecity.com/duchamp/410/seppuku.html](http://victorian.fortunecity.com/duchamp/410/seppuku.html) That’s a toughie. If you were in Japan, there probably would be no problem, but I doubt that a jury would buy that as a legal excuse unless you proved that your friend and you were living the life of the samauri and carrying out the tradition (which, according to this website, took place in Feudal Japan, until about 1868). Again, probably wouldn’t fly. Anyhoo, you can use any defense you want, as stated earlier, but not all excuses are legitimate or will get you out of a murder rap. Good luck! Zette ---
**Author:** ![Abe\_Babe](https://avatars.discourse-cdn.com/v4/letter/a/3ab097/32.png) [@Abe\_Babe](https://boards.straightdope.com/u/Abe_Babe)\ **Post date:** [June 29, 2001, 9:30pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/14 "2001-06-29T21:30:15Z")
The defense of “It didn’t count cause I was drunk” has been tried in a great many criminal trials. It is called the defense of voluntary intoxication. Unless you can prove that you truly didn’t know what you were doing, or you were physically unable to stop yourself, you’re goin’ down the river. The idea is that you don’t relieve yourself of culpability for your actions just by popping a few tabs of acid. Think about the repurcussions of allowing that. ---
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [June 29, 2001, 11:19pm UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/15 "2001-06-29T23:19:22Z")
Thanks for the replies, but I think I should have been more specific: can a defense attorney, or someone acting as his own attorney, enter a not guilty verdict on any grounds and then try to persuade the jury that (1) the ascribed circumstances were true and (2) that they constitute a good reason for acquittal? Or would a judge disallow certain defenses like ritual suicide? ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [June 30, 2001, 1:30am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/16 "2001-06-30T01:30:08Z")
> [@](#): > > \*Originally posted by blainer \* > \*\* > > LUCWARM: Why would the fact that someone was dueling or “engaged in trial by combat” lead to a charge of manslaughter? > > Thanks! > > \*\* IIRC from grad school, there were three traditional grounds to convert a murder charge into manslaughter: (1) Mutual combat; (2) Catching your spouse _in flagrante_ (3) Physical attack or provocation (sorry opal) Of course, I have no idea how these things are treated under modern penal codes. **Doghouse** : To clarify what I said before, I believe that if you were charged with “murder one,” most judges would let you argue (2), (3), and (4) to the jury. And you would likely be entitled to an appropriate jury charge. For example, with the William Tell scenario, you may be able to request something roughly similar to the following jury charge: “If you find that the defendant did not intend for the victim to die or suffer serious injury, but instead acted recklessly or negligently, then you should not convict him of murder in the first degree, but instead convict him of manslaughter.” With respect to ritual suicide, I believe that, in general, most judges would not let you argue consent to the jury. With a few narrow exceptions (for example, administration of a dangerous experimental drug to a terminally ill patient) consent is irrelevant. But these are just WAGs - to really know the answer, you need to figure out which jurisdiction you’re interested in, and look up the law of homicide in that jurisdiction. (Standard disclaimer about legal advice). ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 30, 2001, 1:50am UTC](https://boards.straightdope.com/t/homicide-defense-can-you-give-any-ol-reason/70548/17 "2001-06-30T01:50:39Z")
> [@](#): > > \*Originally posted by Doghouse Reilly \* > Thanks for the replies, but I think I should have been more specific: can a defense attorney, or someone acting as his own attorney, enter a not guilty verdict on any grounds and then try to persuade the jury that (1) the ascribed circumstances were true and (2) that they constitute a good reason for acquittal? Or would a judge disallow certain defenses like ritual suicide? [nitpick]The attorney cannot enter a verdict. A verdict is a decision of a jury (not even a judge). The attorney can enter a _plea_ of not guilty[/nitpick] If the circumstances would have no bearing on the legality of the behavior, the judge can (and should) bar testimony on them. If you can find some legitimate reason under the rules of evidence why they should be heard, you may be able to bring them in even though they may lead the jury to draw other impermissible inferences. The judge is supposed to try to prevent this by explaining to the jury what they are and are not allowed to do when he charges them before they deliberate, but the courts are _extremely_ reluctant to look at anything that happened inside the jury room.