Exculpation as Inculpation

49 Ariz. St. L.J. 1141 (2017). Russell L. Christopher.

Should a criminal defendant who contrives, creates, or causes the conditions of her own defense forfeit the defense? For example, suppose a provocateur taunts a provocatee into unlawfully attacking so that the provocateur may justifiably kill in self-defense. There are two competing approaches. Under the principle that defense-contrivers have “unclean hands,” the predominant approach of the criminal law is to bar the defense (the Legal approach). Disagreeing, most criminal theorists advocate both granting the contrived defense and, seemingly paradoxically, imposing criminal liability for culpably contriving the defense (the Theoretical approach). That is, seeking exculpation is itself inculpatory. The Theoretical approach raises the following puzzle: how does coupling the intent to act lawfully (justifiably) with an independently lawful act (taunting) that causes a lawful (justified) result combine to create criminal liability? By appreciating the conditional nature of defense-contrivers’ strategy and applying the overlooked doctrine of conditional intent, this Article solves the puzzle but demonstrates that the Theoretical approach simply does not work. It fails to hold defense-contrivers liable for a wide variety of offenses. In contrast, the comparatively straightforward Legal approachbarring contrived defensesavoids these failures, successfully imposes liability, and is therefore preferable.

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