THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11 - CHAPTER 253
253.4 Self Defense, Defense Of Others,
Defense Of Property -- Complete
253.4.9 Self Defense:
Prior Acts Or Threats
253.4.9.1 Prior Acts Or Threats: Right To Instruction
253.4.9.2 Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response
253.4.9.3 Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault
253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim
253.4.9.5 Application Of Prior/Antecedent Threat Doctrine To Recent Threats
253.4.9.6 Self Defense: Consideration Of Prior Relationship Between Defendant And Victim
253.4.9.7 Self Defense: Knowledge Of Prior Acts of Violence Against Others
253.4.9.8 Prior/Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
253.4.9.9 Failure To Give Prior Threat Instruction As Reversible Error
253.4.9.10 Failure To Request Prior/Antecedent Threat Instruction As Ineffective Assistance Of Counsel
253.4.9.11 Instruction On Prior Threats By Gang Members
THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11 - CHAPTER 253
253.4.9.1
Prior Acts Or Threats: Right To Instruction
[NOTE:
Other than copyright information, none of the internal hyperlinks in this
document will work as this is only a sample for demonstration purposes only]
RATIONALE:
When
a person has received prior threats from another person the entire calculus of
their relationship is changed. For example, an act which ordinarily might not
justify self defense (e.g., reaching into a pocket) could trigger lawful self
defense when considered in light of prior threats. Hence, the impact of such
threats can be an essential defense theory upon which instruction may be
appropriate.
POINTS AND AUTHORITIES:
One who has received threats against his life or
person by another is justified in acting more quickly and taking harsher
measures for his own protection in the event of assault, whether actual or
threatened, than would a person who had not received such threats. (See e.g., Allison
v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395] [prior threats
relevant to justify "promptness to repel attack ..."]; People v.
Moore (CA 1954) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (CA
1992) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (CA 1978) 84 CA3d
294, 302-04 [148 CR 430]; People v. Taylor (MI 1992) 489 NW2d 99, 101
[antecedent threat admissible to show that defendant had access to weapon]; Fielder
v. State (TX 1988) 756 SW2d 309, 319-20 [threats made by the alleged victim
against the defendant either at the time of the confrontation or antecedent
threats made earlier, may be considered as circumstances in deciding the
reasonableness of the defendant’s belief in the need to use self defense]; Lewis
v. Commonwealth (VA 1884) 78 Va. 732, 734 ["The court instructs the
jury that the threats made by the deceased prior to the day of killing -- as
well as those made to the prisoner in person [and] those made to others and
communicated to the prisoner -- are to be considered by them in the
determination of the question as to whether the accused had, at the time of the
killing, a reasonable ground to apprehend that the deceased intended to do him
[the prisoner] serious bodily harm"]; Hubbard, JURY INSTRUCTIONS FOR
CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst.
10.2 [Prior Difficulties] p. 275 ["...[P]rior difficulties between the
defendant and the alleged aggressor or aggressors may be relevant to whether a
threat existed, to whether defendant had reason to believe a threat existed, and
to how serious the threat was"] (South Carolina CLE, 1994).)
Prior acts of
violence may be similarly relevant. (See Hunter v. State (AL 1975) 325
So2d 921, 925; State v. Peoples (MO 1981) 621 SW2d 324, 328-29 [where
evidence of self-defense shows antecedent threat or violence by victim upon
defendant, court must instruct jury, whether requested or not, on how to
consider evidence, as such acts may bear on self-defense]; see also NCJIC 253.4.8.2
[Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In
Conformity With Character].) Sign
Up Today for access to Juryinstruction.com! Click
Here!
FEDERALIZATION: To
federalize this request, click here. [Constitutional Macro 2.3;
4.1].
USE NOTES: Mandatory
Consideration. Even though many of these
sample instructions inform the jury that it "may" or
"should" consider the evidence, it may be argued that consideration of
the evidence should be mandatory. (See NCJIC 16.3.1
[Jury Must Consider All Of The Evidence].)
Subsequent Assault By Another
Person Who The Defendant Believes Made The Original Threat Or Assault.
(See NCJIC 253.4.9.3
[Self Defense: Subsequent Assault By Another Person Who The Defendant Believes
Made The Original Threat Or Assault].)
Antecedent Threats By Associates
Of The Victims. (See NCJIC 253.4.9.4
Prior/Antecedent Threats By Associates Of The Victim].)
Application Of Antecedent Threat
Doctrine To Recent Threats. (See NCJIC 253.4.9.5
[Application Of Prior/Antecedent Threat Doctrine To Recent Threats].)
RESEARCH NOTE:
Annotation, Admissibility Of
Threats To Defendant Made By Third Parties To Support Claim Of Self Defense In
Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449.
See generally, NCJIC 305.19.1
[Self Defense].
RELATED FEDERAL MODEL
INSTRUCTIONS:
See generally, NCJIC 253.4.1.20
[Self Defense: Federal Model Instructions].
SAMPLE INSTRUCTION # 1 [Prior
Threats]:
One who
has received threats against [his] [her] life or person made by another is
justified in acting more quickly and taking harsher measures for [his] [her]
own protection in the event of assault either actual or threatened, than
would be a person who had not received such threats.
If in
this case you believe that __________ [insert
name of deceased or assault victim] made prior threats against the
defendant and that the defendant, because of such threats, had reasonable
cause to fear greater peril in the event of an altercation with __________
[insert name of deceased or assault victim],
you are to consider such facts in determining whether the defendant acted as
a reasonable person in protecting [his] [her] own life or bodily safety.
[Source: NCJIC.]
SAMPLE INSTRUCTION # 2 [Prior
Threats]:
Evidence
has been presented of alleged past threats against the defendant by
________________ (insert name of
deceased).
When
evidence of past threats are known by the defendant at the time of the
alleged crime, consider such evidence in determining who was the aggressor.
Also, consider such evidence in
determining the reasonableness of the defendant's fear of danger to [his]
[her] safety.
[See Allison v. U.S.
(1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson,
MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(d)
[Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of the
Deceased-Prior Threats By The Deceased Against The Defendant Known By
The Defendant] p. 838 (Lexis, 2nd ed. 1988).]
SAMPLE INSTRUCTION # 3 [Prior
Threats]:
Evidence
has been presented of alleged past threats against the defendant by
________________ (insert name of
deceased).
Where
there is evidence of past threats against the defendant by the deceased that
were not known by the defendant at the time of the alleged crime, consider
such evidence in deciding who was the aggressor.
[See NCJIC 253.4.8.2
[Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She
Acted In Conformity With Character]; cf. Aaronson, MARYLAND CRIMINAL
JURY INSTRUCTIONS AND COMMENTARY 5.16(e) [Self-Defense-Prior Acts,
Reputation (Or Opinion) And Threats Of The Deceased-Prior Acts Of
Violence By Th Deceased Known By The Defendant] p. 838-39 (Lexis, 2nd
ed. 1988).]
SAMPLE INSTRUCTION # 4 [Prior
Threats]:
Consider
any threats made by the assailant or the assailants in deciding whether the
defendant acted lawfully in self defense.
[Cf. Hubbard, JURY
INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED
INSTRUCTIONS VI(A) inst. 10.2 [Prior Difficulties] p. 275 (South
Carolina CLE, 1994).]
SAMPLE INSTRUCTION # 5 [Prior
Threats]:
Members
of the Jury, I charge you that words, threats and menaces may, in some
circumstances, be sufficient to arouse in the mind of the person to whom
they are directed, a reasonable fear that his life is in immediate danger,
or that a felony is about to be committed on his person.
[Source: Facison v.
State (GA 1979) 263 SE2d 523, 524; see also Moore v. State
(GA 1972) 187 SE2d 277, 278.]
SAMPLE INSTRUCTION # 6 [Prior
Threats And Acts]:
Consider
evidence of threats of violence by [_____________
(name of alleged victim)] [the alleged victim] against the defendant, if
there is evidence that the defendant was aware of such threats. (name
of alleged victim)] [the alleged victim] against the defendant, if there
is evidence that the defendant was aware of such threats.
[Cf. Hrones & Homans,
MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 4-1 [Self-Defense] ¶ 6
(Lexis, 2nd ed. 1999).]
SAMPLE INSTRUCTION # 7 [Prior
Acts Of Violence]:
Evidence
has been presented of alleged past acts of violence by _____________ (insert
name of deceased) which were known by
the defendant.
Where
there is evidence of past acts of violence by the deceased that were known
by the defendant, consider such evidence in deciding who was the aggressor.
Also, consider such evidence in deciding the reasonableness of the
defendant's fear of danger to his safety.
[See Allison v. U.S.
(1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson,
MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(a)
[Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of The
Deceased-Prior Acts Of Violence By The Deceased Known By The Defendant]
pp. 836-37 (Lexis, 2nd ed. 1988).]
SAMPLE INSTRUCTION # 8 [Prior
Acts]:
Evidence
has been introduced of acts of violence not involving the defendant
committed by ________________ (name
of victim) and that the defendant was aware of these acts. Consider this
evidence in deciding whether the defendant reasonably believed [he] [she]
was in imminent danger of harm from ____________ (name of victim).
Do not consider this evidence in deciding who was the initial aggressor in
the encounter or for any other reason.
[See Allison v. U.S.
(1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. MISSOURI APPROVED
INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use
Of Force In Self-Defense] ¶ 4 (Missouri Supreme Court Publications, 3rd
ed. 1987); see also State v. Bashe (MO 1983) 657 SW2d 321, 325-26
[instruction is mandated when there is testimony as to a specific act of
violence.]
SAMPLE INSTRUCTION # 9 [Prior
Acts]:
There has
been evidence that the [complainant/decedent] may have committed violent
acts in the past and that the defendant knew about these acts. You may*
consider this evidence when you decide whether the defendant honestly and
reasonably feared for [his/her] safety.
* But see NCJIC 16.3.1
[Jury Must Consider All Of The Evidence].
[See Allison v. U.S.
(1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. MICHIGAN
CRIMINAL JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or
Decedant] ¶ 1(ICLE, 2nd ed. 1999).]
SAMPLE INSTRUCTION # 10
[Reputation]:
Consider
any evidence that ______________ (name
of alleged victim) had a reputation for cruelty or violence when you
decide whether it was likely ______________ (name of alleged victim)
threatened the defendant, and whether the defendant honestly and reasonably
feared for [his/her] safety.
[Cf. MICHIGAN CRIMINAL
JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or Decedant] ¶ 2 (ICLE,
2nd ed. 1999).]
SAMPLE INSTRUCTION # 11
[Reputation]:
Evidence
has been introduced that ________________ (name
of alleged victim) had a reputation for ______________ and that the
defendant was aware of that reputation. Consider this evidence in deciding
whether the defendant reasonably believed [he] [she] was in imminent danger
of harm from ________________ (name of alleged victim).
Also, consider this evidence in deciding who was the initial aggressor.
[Cf. MISSOURI APPROVED
INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use
Of Force In Self-Defense] ¶ 2 (Missouri Supreme Court Publications, 3rd
ed. 1987).]
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11 - CHAPTER 253
253.4.9.9 Failure To Give Prior Threat Instruction As
Reversible Error
[NOTE:
Other than copyright information, none of the internal hyperlinks in this
document will work as this is only a sample for demonstration purposes only]
PRACTICE NOTE: In People v. Jelks UNPUBLISHED (A053527) and People
v. Tafoya UNPUBLISHED (3/30/95, B080123), the Court of Appeal reversed for
failure to give NCJIC's antecedent threat instruction. (See also People v. Parish
UNPUBLISHED (7/18/95, A064582) [reversing for failure to give requested
antecedent threat instruction and holding that the other instructions did not
adequately cover the relevance of the antecedent threats to the claim of self
defense].)
People v. Pena (CA 1984) 151 CA3d 462, 475 [198 CR
819] held that the erroneous failure to instruct on antecedent threats is
"presumed prejudicial." Sign
Up Today for access to Juryinstruction.com! Click
Here!
OPINIONS AND BRIEFING
AVAILABLE: To read the Jelks and Tafoya opinions, click here. [Opinion Bank #
O-119a and Opinion Bank
# O-119b]. To read the opinion and brief in People v. Parish UNPUBLISHED,
click here. [Brief Bank # B-691 and Opinion Bank #
O-206]. For additional briefing regarding the
prejudicial impact of the failure to instruct on antecedent threats, click here.
[Brief Bank # B-723].
RESEARCH NOTES:
See generally, NCJIC 305.19.1 [Self
Defense].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, NCJIC 253.4.1.20 [Self
Defense: Federal Model Instructions].
