FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

[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: The meaning of imminent danger may be different from the perspective of a battered person. Therefore, an explanatory defense theory instruction may be necessary to assure that the jury understands this important factor.

POINTS AND AUTHORITIES: Imminence "does not require an actual physical assault. A threat, or its equivalent, can support self defense when there is a reasonable belief that the threat will be carried out. Especially in abusive relationships, patterns of behavior become apparent which can signal the next abusive episode." (State v. Janes (WA 1993) 850 P2d 495, 506 [citations omitted].) While "immediate harm means occurring, acting, or accomplished without loss of time, made or done at once, ... imminent harm means ready to take place, near at hand, ... hanging threateningly over one’s head. In an abusive situation, [t]hat the triggering behavior and abusive episode are divided by time does not necessarily negate the reasonableness of the defendant’s perception of imminent harm." (Janes, 850 P2d at 506 [internal quotes omitted].)

    "In a case involving an allegation that the defendant was a battered person, the jury must be allowed to evaluate the reasonableness of the defendant’s perception of the immediacy of the harm in light of the defendant’s experience of abuse." (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.01 [Duress-Defense], comment (West, 2nd ed. 1994) (1998 Pocket Part); see also State v. Williams (WA 1997) 937 P2d 1052, 1058.)

    A defendant asserting self-defense must show that she had reasonable belief as to imminence of great bodily harm or death and as to force necessary to prevent it, and several psychological symptoms that develop in one suffering from battered woman syndrome are particularly relevant to standard of reasonableness in self-defense, such as symptom of greater sensitivity to danger which has come about because of intimacy and history of relationship. (Bechtel v. State (OK 1992) 840 P2d 1, 10.) "...[T]he battered woman develops a heightened sensitivity to any kinds of cues of distress. Thus, because of her intimate knowledge of her batterer, the battered woman perceives danger faster and more accurately as she is more acutely aware that a new or escalated violent episode is about to occur. What is or is not an overt demonstration of violence varies with the circumstances. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger, under other circumstances this would not be so. And it is for the jury, and not for the judge passing upon the weight and effect of the evidence, to determine how this may be. Indeed, considering her particular circumstances, the battered woman's perception of the situation and her belief as to the imminence of great bodily harm or death may be deemed reasonable." [Internal cites and quote marks omitted.] (Ibid.; see also (Robinson v. State (SC 1992) 417 SE2d 88, 91.)  Sign Up Today for access to Juryinstruction.com! Click Here!

    See also FORECITE National™ 48.1.8 [Reasonable Person Standard: Truth Of Belief Not Controlling; Mistaken Belief May Be Sufficient].

    See also FORECITE National™ 253.4.10.3 [Self Defense: Truth Not Controlling; Belief May Be Reasonable Even If Mistaken].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    The imminent danger element may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her at the time when the battered woman acts. This is because battered women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep.

[Source: Robinson v. State (SC 1991) 417 SE2d 88, 91.]

    In deciding whether the defendant had a reasonable belief of imminent danger and whether defendant actually was in such imminent danger consider prior instances of violence or of unprovoked aggression by the alleged victim.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A)10.5 [Prior Incidents of Violence By Assailant] p. 278 (South Carolina CLE, 1994).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

[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: Battered person syndrome is predicated on prior threats and acts of violence. Hence, the same logic that permits instruction on prior threats should also permit instruction on battered person syndrome and the justification of acting more quickly in light of the circumstances.

POINTS AND AUTHORITIES: A defendant asserting self-defense must show that she had reasonable belief as to (1) imminence of great bodily harm or death and (2) the necessity of using force necessary to prevent the harm. Several psychological symptoms that develop in one suffering from battered person syndrome are particularly relevant to standard of reasonableness in self-defense, such as the symptom of greater sensitivity to danger which has come about because of the intimacy and history of the relationship. (Bechtel v. State (OK 1992) 840 P2d 1, 10; State v. Collins (CT 2002) 793 A2d 1160 [alleged victim's abuse of defendant tends to show that the defendant in fact feared the alleged victim and was reasonable in doing so].)

    "...[T]he battered woman develops a heightened sensitivity to any kinds of cues of distress. Thus, because of her intimate knowledge of her batterer, the battered woman perceives danger faster and more accurately as she is more acutely aware that a new or escalated violent episode is about to occur. What is or is not an overt demonstration of violence varies with the circumstances. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger, under other circumstances this would not be so. And it is for the jury, and not for the judge passing upon the weight and effect of the evidence, to determine how this may be.

    Indeed, considering her particular circumstances, the battered woman's perception of the situation and her belief as to the imminence of great bodily harm or death may be deemed reasonable." [Internal cites and quote marks omitted.] (Ibid.)

    "Depending upon the facts of each case, the second element of self-defense also may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her when she acts. This is because battered women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep. [Citations.]" (Robinson v. State (SC 1991) 417 SE2d 88, 91; see also People v. Humphrey (CA 1996) 13 C4th 1073, 1083 [56 CR2d 142].)  Sign Up Today for access to Juryinstruction.com! Click Here!

    See also FORECITE National™ 253.4.9 [Self-Defense: Prior Acts Or Threats].

ARTICLE AVAILABLE: For additional materials on BWS, click here. [Article Bank # A-12].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-608; Brief Bank # B-656].

OPINION AVAILABLE: Click here. [Opinion Bank # O-136].

SAMPLE INSTRUCTION # 1:

    A person who suffers from battered person syndrome has a greater sensitivity to danger than does the ordinary person. As a result, a person who suffers from battered person syndrome is justified in acting more quickly and taking harsher measures for her protection in the event of assault either actual or threatened, than would a person who is not subject to battered person syndrome.

    Evidence has been received in this case that the defendant suffers from battered person syndrome and has a greater sensitivity to danger. If you believe that the defendant has a greater sensitivity to danger and, because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or alleged assault victim], you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting her life or bodily safety.

[Source: FORECITE National™.]

    A person who has previously been the victim of assault and suffered injuries therefrom may have a greater sensitivity to danger than does the ordinary person. As a result, a person who has previously been the victim of assault and suffered injuries therefrom may be justified in acting more quickly and taking harsher measures for [his] [her] protection in the event of assault either actual or threatened, than would a person who has not been so injured or assaulted.

    Evidence has been received in this case that the defendant was previously assaulted and was injured thereby and had a greater sensitivity to danger. If you believe that the defendant had a greater sensitivity to danger, and because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with _____________________ (name of alleged victim), you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting his life or bodily safety.

[Source: FORECITE National™.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

256.1.3.3    Battered Person Syndrome: Relevant To Both Subjective Belief And Objective Reasonableness Requirements Of Self Defense

[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: Battered Person Syndrome is relevant to both the issues of whether the defendant subjectively believed in the need to use deadly force and whether that belief was reasonable under the circumstances.

POINTS AND AUTHORITIES: "A person who has been the object of battering may be entitled to the use of the defense of self defense even if the acts committed are not committed in response to a threat of imminent assault. The subjective perceptions of the battered defendant are to be taken into account as assessing the reasonableness of the defendant’s conduct." (Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.06(6); see also U.S. v. Cebian (11th Cir. 1985) 774 F2d 446, 447 [post traumatic stress disorder resulting from spousal abuse admissible as relevant to specific intent]; People v. Humphrey (CA 1996) 13 C4th 1073, 1083 [56 CR2d 142]; Smith v. State (GA 1997) 486 SE2d 819, 823 [in homicide cases involving battered person syndrome, modification of traditional justification by self-defense charge is necessary to permit juries to consider reasonableness of defendant's belief that use of force was necessary in light of both defendant's circumstances at time that defendant used force, and any psychological condition resulting from such circumstances]; People v. Seeley (NY 1998) 683 NYS2d 795, 800 [battered women syndrome evidence was relevant to issues of whether defendant reasonably believed that the use of deadly force was necessary and whether that belief was reasonable under the circumstances]; Nemeth v. State (OH 1998) 694 NE2d 1332, 1336-41 [in prosecution of 16-year-old for the murder of his mother, expert testimony regarding battered child syndrome satisfied the requirements for admissibility of expert testimony]; Commonwealth v. Watson (PA 1981) 431 A2d 949, 952 [in determining reasonableness of defendant-wife’s fear that her husband’s attack placed her in mortal peril, relevant factors include history of husband’s abuse of wife and any change in husband’s behavior immediately before wife killed him]; State v. Gomaz (WI 1987) 414 NW2d 626 [failure to instruct on imperfect self defense was reversible error where perfect self defense instruction was given for homicide defendant who was severely beaten by decedent the previous day]; State v. Felton (WI 1983) 329 NW2d 161, 171-72 [provocation and NGI]; State v. Hoyt (WI 1964) 128 NW2d 645, 648-49 [heat of passion]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:45 [Defenses-Justification-Battered Wife Syndrome] (West, 1999); WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 800 [Privilege: Self Defense: Force Less Than That Likely To Cause Death Or Great Bodily Harm] p. 3 (University of Wisconsin Law School, 1999) ["...[T]he history of abuse between the spouses may be relevant to evaluating whether the defendant’s belief in the need to use force was reasonable"].)

    "In a case involving allegations of ongoing abuse, the jury is to inquire whether the defendant acted reasonably, given the defendant’s experience of abuse by the victim." (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 16.02 [Justifiable Homicide-Defense Of Self And Others], comment (West, 2nd ed. 1994) (1998 Pocket Part); see also State v. Janes (WA 1993) 850 P2d 495, 505.)

    In fact, it has been held to be ineffective assistance of counsel to not request instruction on such matters. (See Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 775 [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person's fear of imminent danger of death or serious bodily injury with respect to claim of self defense].)  Sign Up Today for access to Juryinstruction.com! Click Here!

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

[Cf. GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Battered Person Syndrome] pp. 45-46, (AA)(2)(e) Rev. 11/97 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

[Cf. OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.33(6) [Self Defense Against Danger Of Bodily Harm] (Anderson, 2000); State v. Koss (OH 1990) 551 NE2d 970, 974.]

    A person is justified in using deadly force in self defense if that person reasonably believed that use of deadly force was necessary to protect herself from imminent danger of death or great bodily harm. Self defense is available even if the danger to life or personal security was not real, if a person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that she was in imminent danger of death or great bodily harm.

[See Bechtel v. State (OK 1992) 840 P2d 1, 11; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-47 [Battered Women Cases] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    The first element of self defense is that a defendant must not be at fault in bringing about the difficulty. Often a battered woman will kill an abuser during a confrontation when the man clearly is the aggressor, so that this element is satisfied. However, it may be possible to characterize a battered woman as the victim of a continuing assault at the hands of her batterer. When this is the case, the first element of self defense may be satisfied even though the battered woman acts at a time when the batterer is not physically abusing her.

    The second element of self defense is that a defendant must either have been in imminent danger or have believed that, at the time she acted, she was in imminent danger of death or serious bodily harm. At times, a battered woman actually is in imminent danger of violence when she acts. Depending upon the facts, the second element of self defense also may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her at the time when the battered woman acts. This is because battered women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep.

    The third element of self defense is that a reasonable, prudent person in the same or similar circumstances would have acted as the defendant did in order to save herself. Where abuse appears interminable and escape impossible, the belief that only the death of the batterer can provide relief may be reasonable in the mind of a person of ordinary firmness.

    Under the fourth element of self defense, a defendant must have had no other means of avoiding the danger than to act as she did. A battered woman who is, from her point of view, held hostage by her batterer may have no other means of avoiding a battering than to kill her batterer in self defense. Moreover, a battered woman often may be able to claim the inapplicability of this element of self defense because she acts while on her own premises and has no duty to retreat.

[Source: Robinson v. State (SC 1991) 417 SE2d 88, 92.]

    In deciding whether defendant had a right to use deadly force in self defense, consider all of the circumstances including any battered person syndrome evidence.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A)10.9 [Battered Spouse Syndrome] p. 282 (South Carolina CLE, 1994).]