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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.10 Self Defense: Defendant’s Belief Must Be Subjectively Held And Objectively Reasonable

    253.4.10.1 Self Defense: Two-Pronged Subjective And Objective Test
    253.4.10.2 Self Defense: Defendant's Belief In Peril
    253.4.10.3 Self Defense: Truth Not Controlling; Belief May Be Reasonable Even If Mistaken
    253.4.10.4 Self Defense: Vulnerability Of Defendant To Show Honest Belief In Peril
    253.4.10.5 Self Defense: Abnormal Fear As Evidence Of Honest Belief Of Peril
    253.4.10.6 Self Defense: Expert Testimony Regarding Defendant’s Mental Retardation
    253.4.10.7 Self Defense: Fear Of Police As Relevant To Defendant’s Belief

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PRACTICE NOTE: See State v. Perez (KS 1992) 840 P2d 1118, 1123 [jury must apply subjective standard to decide whether defendant honestly believed in necessity to kill and objective standard to determine whether a reasonable person in defendant’s circumstances would have considered self defense to be necessary].

    See also FORECITE National™ 253.4.8.1 [Self Defense: Victim’s Previous Bad Acts Or Character Relevant To Both Subjective Belief And Objective Reasonableness].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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PRACTICE NOTE: The non-aggressor in an encounter is justified in using a reasonable amount of force when he reasonably believes himself to be in imminent danger of unlawful bodily harm from his adversary. (Wharton’s Criminal Law (West, 15th ed. 1993) § 127, pp. 180-92; LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7, pp. 649-651.)

    See also FORECITE National™ 253.4.8.1 [Self Defense: Victim’s Previous Bad Acts Or Character Relevant To Both Subjective Belief And Objective Reasonableness].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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RATIONALE: Self defense is predicated on a reasonable belief in the need to defend. Hence, the defense is not defeated by the fact that the defendant's belief was wrong so long as it was reasonable.

POINTS AND AUTHORITIES:  A reasonable belief in the need to defend, even if mistaken, justifies the use of self defense.  (LaFave & Scott, Substantive Criminal Law (West, 1986) Justification & Excuse 5.7(c), p. 654; see also Commonwealth v. Watley (PA 1997) 699 A2d 1240, 1243 ["the right of self-defense may be available not only to a person who is in actual danger of unlawful attack, but also to one who mistakenly believes that he is"]; but see U.S. v. Keiser (9th Cir. 1995) 57 F3d 847, 852 [whether to give instruction is within judge's discretion]; State v. Kidd (WA 1990) 786 P2d 847, 850 [mistaken belief concept covered by reasonable belief instruction].)

    The claim of self defense is not necessarily defeated if, for example, more knife blows than would have seemed necessary in cold blood are struck in the heat of passion generated by the unsought altercation. A belief which may be unreasonable in cold blood may be actually and reasonably entertained in the heat of passion. (Inge v. United States, 356 F2d 345, 348 (D.C. Cir. 1966); see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-9, Comment, p. 8-60.)

    As the Supreme Court has stated, "[d]etached reflection cannot be demanded in the presence of an uplifted knife." (Brown v. United States (1921) 256 US 335, 343 [41 SCt 511; 65 LEd 96]; but see United States v. Blevins, 555 F2d 1236 (5th Cir. 1977) [defendant is not entitled to an instruction expressly charging that in the heat of passion it may be "reasonable" to use greater force than would otherwise be reasonable in a moment of calm].)

    However, while a defendant may be mistaken and still claim self-defense, that mistake must be reasonable. (See State v. Vasquez (NJ 1993) 628 A2d 346, 356; State v. Kelly (NJ 1984) 478 A2d 364, 373.)

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

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    If a person honestly and reasonably believes he or she is in imminent danger of being physically harmed the person may lawfully act in self defense even if the belief was mistaken.  Actual danger is not necessary for the use of force to be lawful.

[Cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 17.04 [Lawful Force-Actual Danger Not Necessary] (West, 2nd ed. 1994).]

    Even though the defendant's beliefs must have been reasonable, a belief may be reasonable even though mistaken.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 790 [Coercion] ¶ 4, sent. 1 & 2 (University of Wisconsin Law School, 1999).]

    The fact that the defendant may have been wrong does not matter so long as [he] [she] honestly and reasonably believed in the need to defend [himself] [herself].

[Cf. NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 7.1 [Self Defense (No Deadly Force)] ¶ 4 (West, 2nd ed. 1992).]

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PRACTICE NOTE: The vulnerability of the defendant may be used to show an honest belief in peril. (See People v. Welch (CA 1982) 137 CA3d 834, 840 [187 CR 511].)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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    253.4.10.5    Self Defense: Abnormal Fear As Evidence Of Honest Belief Of Peril

PRACTICE NOTE: See People v. Wells (CA 1949) 33 C2d 330, 344-45 [202 P2d 53].

    See also FORECITE National™ 255.4.2.3 [Imperfect Self Defense: Applicability To Intoxication, Mental Illness Or Delusion].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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    253.4.10.6    Self Defense: Expert Testimony Regarding Defendant’s Mental Retardation

PRACTICE NOTE: Expert testimony should be permitted in support of a self defense theory of the case when such testimony is intended to show that the defendant had a low IQ, is likely to interpret social situations differently than most people, has problems with impulse control, or is likely to jump to conclusions that other people wouldn’t necessarily jump to. Such evidence is relevant to the defendant’s state of mind and manner of perception at the time he/she acted in self-defense, and to the credibility of any testimony as to the defendant's subjective fear of serious bodily injury. (See generally FORECITE National™ 255.4.2.3 [Imperfect Self Defense: Applicability To Intoxication, Mental Illness Or Delusion]; but see Peeples v. Commonwealth (VA 1999) 519 SE2d 382, 385-86.)

    See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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PRACTICE NOTE: Because self defense includes an element of the defendant’s belief in immediate danger of bodily harm, the defendant’s fear of the police may be relevant when the alleged victim was a police officer. (State v. Brown (NM 1977) 573 P2d 675, 678-79.)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].