Unraveling Unknowing Justification

38 Pages Posted: 29 Jul 2019 Last revised: 2 Dec 2019

Date Written: October 1, 2002


This Article concerns a narrow but significant topic in the theory of criminal law--the problem of unknowing justification. Briefly stated, the problem of unknowing justification is this: Should a defendant be exonerated of an offense due to circumstances he was unaware of, where he would have been entitled to a justification defense had he known of the circumstances? This Article will argue that, in general, the unknowingly justified actor should not qualify for a justification defense. Thus it will reject the so- called objective theories of justification, as well as the class of punishment theories in which wrongdoing is the central organizing principle. While wrongdoing is the critical concept for a theory of criminal conduct, i.e., what acts should be prohibited or required, responsibility for causing harm, it will be argued, should be the basis of criminal punishment, i.e., under what conditions sanction should be imposed. Furthermore, between the remaining theories of justification that would hold the unknowingly justified actor liable, this Article will contend that the “subjective theory of justification” offers the best account of justification in general and the problem of unknowing justification in particular. Where a harm has been caused, punishment is always due unless the actor can show that he can be excused for causing the harm. Finally, although this Article supports the subjective theory of justification, it supports a version that differs from the Model Penal Code and other subjective justification theories. In particular, it advances a new mental state called “regarding” as the requisite for asserting a justification defense. Thus this Article's position, by virtue of either its result or reasoning, is novel.

Keywords: Criminal defense justification unknowing theory

Suggested Citation

Dillof, Anthony, Unraveling Unknowing Justification (October 1, 2002). 77 Notre Dame L. Rev. 1547 (2002), Wayne State University Law School Research Paper No. 2019-69, Available at SSRN: https://ssrn.com/abstract=3416924

Anthony Dillof (Contact Author)

Wayne State Univerity Law School ( email )

471 W. Palmer
Detroit, MI 48202
United States
(313) 577-9450 (Phone)

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