THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253
Go to Volume 11 Table of Contents  -  Go to Chapter 253 Table of Contents

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

    253.4.11 Reasonable Person In Defendant’s Situation As Standard For Objective Reasonableness

    253.4.11.1 Reasonable Person Standard: Consideration Of All Relevant Circumstances In Which The Defendant Is Placed
    253.4.11.2 Self Defense: Finding Of “Deadly Force” Requires Consideration Of Circumstances And Intent
    253.4.11.3 Reasonable Person Standard: Consideration Of Defendant's Individual Attributes
    253.4.11.4 Self Defense: Reasonable Person Standard -- Consideration Of Heat Of Passion
    253.4.11.5 Self Defense: Reasonable Person Standard -- Words of Provocation May Be Considered
    253.4.11.6 Self Defense: Reasonable Person Standard -- Consideration Of Emotional Condition Other Than Heat Of Passion
    253.4.11.7 Self Defense: Reasonable Person Standard -- Defendant Not Required To Make "Nice Judgments" About How Much Force Is Needed
    253.4.11.8 Self Defense: Reasonable Person Standard: Consideration Of Physical Disabilities
    253.4.11.9 Self Defense: Reasonable Person Standard -- Defendant Need Not Wait For The Attack
    253.4.11.10 Self Defense: Reasonable Person Standard -- Consideration Of Defendant's Prior Experiences
    253.4.11.11 Self Defense: Reasonable Person Standard -- Consideration Of The Nature Of The Weapons Used
    253.4.11.12 Self Defense: Reasonable Person Standard -- Consideration Of Physical Attributes Such As Relative Size, Strength And Age Of The Parties
    253.4.11.13 Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants
    253.4.11.14 Self Defense: Reasonable Person Standard -- Jury Must Put Themselves In The Defendant's Situation
    253.4.11.15 Self Defense: Reasonable Person Standard -- Comparison Of Injuries Sustained By Defendant And Alleged Aggressor
    253.4.11.16 Self Defense: Reasonable Person Standard -- No Duty To Retreat: Jury May Still Consider Unavailability Of Retreat
    253.4.11.17 Self Defense: Reasonable Person Standard -- Must Be Based On Circumstances Known To The Defendant
    253.4.11.18 Self Defense: Reasonable Person Standard -- Battered Person Syndrome
    253.4.11.19 Self Defense: Reasonable Person Standard -- Consideration Of Culture

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: It is essential that the jury understand that the reasonableness of the defendant's conduct and beliefs must be evaluated in light of the circumstances in which the defendant was placed.

POINTS AND AUTHORITIES: It is well established that the objective reasonable person standard requires consideration of all the circumstances in which the defendant was placed. (See NCJIC 48.1 [General Principles]; see also People v. Minifie (CA 1996) 13 C4th 1055, 1065-66 [56 CR2d 133]; People v. Humphrey (CA 1996) 13 C4th 1073, 1083 [56 CR2d 142].)

    Accordingly, the jury should be instructed to consider all the relevant circumstances in which the defendant was placed. (See NCJIC 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person]; see also NCJIC 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief]; see also NCJIC 48.1.3 [Objective Reasonable Person Standard: Consideration Of Past Experiences]; see also NCJIC 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances From Defendant’s Perspective].)

    "Such factors, as the physical stature of the defendant versus the victim, or the prior relationship between the defendant and the victim, or the defendant's state of mind at the time of the incident can all figure into the jury's assessment of reasonableness. [Citation.]" (Commonwealth v. Mayfield (PA 1991) 585 A2d 1069, 1074.)

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

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether a reasonable person placed in a similar position as the defendant would have been justified in using self defense, consider all the relevant circumstances applicable to the defendant. Relevant circumstances include factors such as the defendant's physical disabilities, the defendant's intoxication, ________________'s (name of alleged victim) character or reputation for violence if known to the defendant, and prior threats and/or acts of physical violence perpetrated by ______________ against the defendant or third parties if known to the defendant.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: Whether deadly force was used depends on the amount of force used and the defendant’s intent.  For example, striking someone with a broom handle may or may not be the use of deadly force. Similarly, while threatening to use a deadly weapon is evidence of the use of deadly force, it is not conclusive as the person may have intended only to make the threat and not actually to use the weapon to cause death or serious physical injury. If the defendant did not have an intent to cause death or serious physical injury and was not aware that such injuries were likely, he has not used "deadly force." (MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06, Part C, Use Note 4(b) 10/1/95 [Justification: Use Of Force In Self-Defense] (Missouri Supreme Court Publications, 3rd ed. 1987).)

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: Without specific instruction the jury may not know to consider the individual attributes of the defendant in applying the reasonable person standard.

POINTS AND AUTHORITIES: "A jury ... must assess the reasonableness of a defendant's apprehension, taking into account not only the circumstances with which he is confronted, but his individual attributes as well. Our law does not hold a nervous coward and a fearless bully to an identical reasonable person standard. [Citations.]" (State v. Wheelock (VT 1992) 609 A2d 972, 976.) Hence, the jury should consider the physical and mental traits of the defendant such as "age, size, strength, stamina, courage and assertiveness," as well as the attendant circumstances. (Ibid.; State v. Leidholm (ND 1983) 334 NW2d 811, 818.)

    See also NCJIC 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person may use deadly physical force in his own defense when: (1) it was reasonable to believe that another person was using, or was about to use, deadly physical force against him, and (2) it was reasonable to believe that use of deadly physical force was necessary to prevent serious physical injury or death to himself or another.

    In other words, self defense may lawfully be used when: 

    (1)  It was reasonable for the defendant ________, to have believed that ________ was using or was about to use deadly physical force against him; and 

    (2)  The defendant reasonably believed that the use of deadly physical force was necessary to prevent serious physical injury or death to himself. 

    The prosecution contends that the defendant did not act reasonably.  In deciding whether the prosecution has met its burden of proving this contention beyond a reasonable doubt, consider whether a reasonable person in the same situation as the defendant would have believed that deadly force was necessary. Also consider 

    (A)  Any prior knowledge the defendant had about the person who attacked him, (if any), and 

    (B) The physical attributes or characteristics of the person who attacked the defendant such as the size and weight of that person, compared to the defendant’s size and weight.

    Again, the standard you are governed by is whether a reasonable person in the same circumstances as the defendant and having the same physical attributes as the defendant when compared to those of the person who attacked him, [and] [who had the same prior knowledge of the person who attacked him] [had similar prior encounters with assailants in the past], would have reasonably believed that deadly physical force was necessary to prevent serious physical harm or death to himself or another.     

[Cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:41 [Defenses-Justification–Another Form] (West, 1999).]

    In deciding if the prosecution has proven beyond a reasonable doubt that the defendant did not act in self defense consider all the circumstances, including but not limited to, the following:

    1.    Any words accompanied and/or hostile acts of the parties.

    2.    Any prior threats or aggressive acts by the alleged aggressor.

    3.    The relative sizes, ages, and weight of the defendant and the alleged aggressor.

    4.    Any violent reputation of the alleged aggressor.

    5.    How many alleged aggressors were involved.

    6.    Any battered person evidence.

    7.    The defendant's background, education (or lack of education), or any other mental or psychological deficiencies relevant to whether the defendant acted as a reasonable person in the circumstances.

[See State v. Fuller (SC 1989) 377 SE2d 328, 330-31; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) [Defense of Self, Others, or Legal Rights – Deadly Force] p. 252 (South Carolina CLE, 1994).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: When a person is assaulted it is not unusual for the emotion of anger and heat of passion to arise. Such emotion should be considered by the jury in evaluating the reasonableness of the defendant's conduct.

POINTS AND AUTHORITIES: See Brown v. U.S. (1921) 256 US 335, 344 [41 SCt 501; 65 LEd 961] [claim of self defense is not necessarily defeated because defendant, acting in heat of passion brought on by the assault, used more force than would have appeared reasonable to a calmer mind]; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.12(b) comment [Self-Defense–Amount Of Force Permissible-Deadly Force] p. 823 (Lexis, 2nd ed. 1988).

    See also NCJIC 253.4.11.7 [Self Defense: Reasonable Person Standard -- Defendant Not Required To Make "Nice Judgments" About How Much Force Is Needed].

    See also NCJIC 253.4.11.5 [Self Defense: Reasonable Person Standard -- Words of Provocation May Be Considered].

    See also NCJIC 253.4.11.6 [Self Defense: Reasonable Person Standard -- Consideration Of Emotional Condition Other Than Heat Of Passion].

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

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether the prosecution has met its burden of disproving self defense beyond a reasonable doubt consider all the circumstances including any evidence of heat of passion.  Use of force in the heat of passion does not necessarily negate self defense even if the force used was greater then would have seemed necessary to a calm mind.  The test is whether the defendant's response was reasonable under the circumstances under which the defendant acted.

[Cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.12(b) [Self-Defense–Amount of Force Permissible-Deadly Force] ¶ 4 (Lexis, 2nd ed. 1988); see also Winner v. State (MD 1924) 125 A 397, 398-99 [belief must be the same as belief of a reasonably prudent person acting in similar circumstances; defendant’s need to resort to self defense should be judged by the facts as they appeared to him, whatever they truly were].]

    In deciding whether the defendant used excessive force in defending himself/herself, consider all the circumstances under which s/he acted. A person acting in the heat of passion caused by an assault does not necessarily lose his or her claim of self defense by using greater force than would seem necessary to a calm mind. In the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind.

[See Brown v. U.S. (1921) 256 US 335, 344 [41 SCt 501; 65 LEd 961]; cf., CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.13(C) [Self Defense-Amount Of Force Permissible] ¶ 2 (Bar Association of the District of Columbia, 4th ed. 1993); see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.12(b) [Self-Defense–Amount of Force Permissible-Deadly Force] ¶ 4 (Lexis, 2nd ed. 1988).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: Words of provocation, although not alone sufficient to justify self defense, are a factor the jury should consider.

POINTS AND AUTHORITIES: Words of provocation and insulting nature may be considered, together with all the other circumstances, in evaluating which person started the incident and whether the defendant’s apprehension of danger was reasonable.  (IOWA CRIMINAL JURY INSTRUCTIONS 400.11 [Words Of Provocation] (Iowa State Bar Association, 1991).)

    See also NCJIC 253.4.11.4 [Self Defense: Reasonable Person Standard -- Consideration Of Heat Of Passion].

    See also NCJIC 253.4.11.6 [Self Defense: Reasonable Person Standard -- Consideration Of Emotional Condition Other Than Heat Of Passion].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    For purposes of self defense, words accompanied by hostile acts, may be sufficient to constitute a threat of physical attack or a threat of serious bodily harm.

[See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS CLE VI(A) 10.1 [Defense Of Self, Others, or Legal Rights -- Deadly Force] ¶ 2 (South Carolina CLE,1994).]

    Depending on the circumstances, a person may act lawfully in self defense based on another person's words which are accompanied by hostile acts.

[Source: NCJIC.]

[See Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS § 14-19 [Self Defense -- Words Accompanied By Hostile Acts] (South Carolina Bar, 1995); see also State v. Harvey (SC 1951) 68 SE2d 409, 414; State v. Mason (SC 1920) 105 SE 286.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: When a person is assaulted it is not unusual for the emotion of fear, nervousness, excitement, fright, or other mental condition to arise. Such emotion should be considered by the jury in evaluating the reasonableness of the defendant's conduct.

POINTS AND AUTHORITIES: See NCJIC 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief]; see also NCJIC 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances From Defendant’s Perspective].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In evaluating the reasonableness of the defendant’s perception, consider [his] [her] fear, nervousness, excitement, fright, or other mental condition.

[Cf. Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 6.43 [Instruction: Self Defense-General] ¶ 5, sent. 3 (Lexis, 1993).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: A defendant who is relying on a theory of self defense should be given some leeway in evaluating the reasonableness of his conduct because close calculations are not always possible in the midst of a deadly encounter.

POINTS AND AUTHORITIES: One has a "right to use force in repelling force or in protecting himself. And he cannot be required to make a nice calculation as to the degree or quantity of the amount of force which may be necessary for the protection from loss of his life or serious bodily harm."  (State v. Smith (SC 1994) 315 S.C. 547, 554; see also Wharton’s Criminal Law (West, 15th Ed. 1993) § 189, p. 452; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 8 [Amount Of Force] p. 269 (South Carolina CLE, 1994); see also Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS § 31-13 [Request To Charge] (South Carolina Bar, 1995).) "[I]n the heat of conflict, or in  the face of impending peril, a person cannot nicely gauge the proper quantum of force necessary to repel the assault, and he will not therefore be deemed guilty of exceeding his rights unless the force was so excessive as clearly to be vindictive under the circumstances of the case."  (State v. Turner (Utah 1938) 95 Utah 129, 156.) 

    See also NCJIC 253.4.11.5 [Self Defense: Reasonable Person Standard -- Words of Provocation May Be Considered], see also NCJIC 253.4.11.6 [Self Defense: Reasonable Person Standard -- Consideration Of Emotional Condition Other Than Heat Of Passion].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether the defendant had a reasonable belief that the killing was necessary, consider the excitement and confusion of the occasion.

[See generally Wharton’s Criminal Law (West, 15th Ed. 1993) § 189, p. 452; see also Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 6.17 [Self-Defense-Homicide] (West, 1994).]

    A person may lawfully use force in repelling force, or in protecting himself or herself.  A person is not required to make a nice calculation as to the amount of force which may be necessary to completely defend against an attack by another person.

[See generally State v. Smith (SC 1994) 446 SE2d 411; see also Wharton’s Criminal Law (West, 15th Ed. 1993) § 189, p. 452; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A), inst. 8 [Defense of Self, Others, or Legal Rights – Deadly Force] p. 269 (South Carolina CLE, 1994); see also Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 31-13 [Request to Charge] (South Carolina Bar, 1995).]

    A defendant is entitled to estimate the necessity for the force he or she uses under the circumstances as he or she reasonably believes them to be at the time. In the heat of conflict, a person who has been attacked ordinarily has neither the time nor the composure to evaluate carefully the danger and make nice judgments about exactly how much force is needed to protect himself or herself.  In other words, when evaluating what the defendant believed and whether (his/her) beliefs were reasonable consider the limitations of human nature.

[See generally Wharton’s Criminal Law (West, 15th Ed. 1993) § 189, p. 452; Commonwealth v. Watley (PA 1997) 699 A2d 1240, 1243; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 9.505 [Justification: Use Of Deadly Force In Self Defense, Sample Complete Instruction] (Pennsylvania Bar Institute, PBI Press, 08/85).]

    The party attacked is a judge of his own peril and can act safely upon the appearance, facts and circumstances surrounding him at the time and the situation should be determined from the standpoint of the defendant, it being for you, the jury, to say whether or not his apprehension of immediate danger of death or serious bodily harm was reasonable and would have been felt by a man of ordinary reason and firmness. Now, whether there was such a reasonable appearance of danger as would justify the killing is, of course, for you, the jury, to determine and in making your determination as I said earlier you could consider the conditions of both parties. If the appearance to the defendant at the time the fatal shot was fired that such he could not reasonably and safely avoid taking of the life of the deceased and a man of ordinary reason and prudence would have arrived at that same conclusion, then he should be acquitted if he is free from fault in bringing on the immediate difficulty. As I said, he has the right to use force in repelling force or in protecting himself. And he cannot be required to make a nice calculation as to the degree or quantity of the amount of force which may be necessary for the protection from loss of his life or serious bodily harm.

[Source: State v. Smith (SC 1994) 446 SE2d 411, 415.]

    In connection with the third and fourth elements of the defense of self- defense, you are instructed that where a person is assaulted or threatened with an assault in such manner and under such circumstances as to cause him to honestly believe as an ordinarily prudent and cautious person that he is at the time in actual danger of losing his life or of suffering great bodily harm, then and in that case he is justified in using such force and such means to protect his life and person as may in good faith then have appeared necessary to him as an ordinarily prudent and cautions person. He is not required to make nice calculations as to just how much force he may be required to use in order to shield himself from danger. All that is required of him is that he shall act from reasonable and honest convictions as to his danger although mistaken as to the extent of such danger.

[Source: State v. Fischer (IA 1953) 60 NW2d 105, 108.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: It is essential that the jury understand that the reasonableness of the defendant's conduct and beliefs must be evaluated in light of any physical disabilities the defendant may have had at the time.

POINTS AND AUTHORITIES: It is well established that the objective reasonable person standard requires consideration of all the circumstances in which the defendant was placed. (See e.g., NCJIC 48.1 [General Principles].)

    Accordingly, the jury should be instructed to consider all the relevant circumstances in which the defendant was placed in light of any physical disabilities of the defendant. (People v. Matthews (CA 1994) 25 CA4th 89, 99 [30 CR2d 330]; see also People v. Spencer (CA 1996) 51 CA4th 1208, 1220 [59 CR2d 627].)

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether a reasonable person placed in a similar position as the defendant would have been justified in using self defense, consider all the relevant circumstances applicable to the defendant. Such circumstances include factors such as the defendant's physical disabilities.

[Source: NCJIC.]

    The amount of knowledge a reasonable person with impaired physical faculties should possess under particular circumstances is the knowledge which a reasonable person  with the same impaired faculties would have under the same circumstances.

[See generally People v. Matthews (CA 1994) 25 CA4th 89, 99 [30 CR2d 330]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 3.37 [Impaired Physical Faculties–Amount Of Caution] (West, 6th Ed. 1996).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: It would be unreasonable to require a person to wait for the aggressor to attack before allowing lawful self defense or defense of others. Hence, when appropriate, the jury should be instructed so that it understands that self defense may apply to an imminent threat even if no attack has been made.

POINTS AND AUTHORITIES: A person who is where he has a right to be, and who reasonably believes he is in imminent danger of assault by another, has a right to attack, and need not wait until his adversary strikes the first blow when it reasonably appears necessary for protection against impending assault. (Pearson v. State (MS 1965) 179 So2d 792, 798; In Interest of J--- M--- (MO 1991) 812 SW2d 925, 933; Martin v. Estrella (RI 1970) 266 A2d 41, 46; see also State v. Starnes (SC 2000) 531 SE2d 907 [jury should have been instructed that defendant is not required to wait until the victim/assailant has aimed or fired a gun before acting].)

    An attack may be imminent even if the defendant isn't actually touched and even if the assailant is not within striking distance; an attack need only be imminent. (Wharton’s Criminal Law (West, 15th ed. 1993) § 127, p. 184.)

    The question is not the immediacy of the threat but the immediacy of the response necessary in defense. If a threatened harm cannot be avoided the defendant does not need to wait until the moment of attack to defend. (LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(d), p. 656.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person need not wait until actual attack or injury or until force is used by the aggressor before exercising the right to use deadly force in self defense. In other words, the person need not wait until the assailant "gets the drop on [him] [her]" to be entitled to use force in self defense.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(d), p. 656; Wharton’s Criminal Law (West, 15th ed. 1993) § 127, p. 184; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A), inst. 6 [Imminent Danger] p. 267 (South Carolina CLE, 1994); see also 6A Corpus Juris Secundum, Assault and Battery § 88.]

    The actual striking of the first blow or inflicting of the first wound does not in itself determine who was the initial aggressor. A person who reasonably believes that another person is about to use physical force upon [him] [her] need not wait until he is struck or wounded. [He] [She] may, in such circumstance, use physical force defensively, so long as it was reasonable for [him] [her] to believe that the other person was using or about to use physical force upon [him] [her]. [He] [She] is then not considered to have been the "initial aggressor," even though [he] [she] struck the first blow or inflicted the first wound.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(d), p. 656; Wharton’s Criminal Law (West, 15th ed. 1993) § 127, p. 184; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:22 [Defenses-Justification–Physical Force] (West, 1999); see also CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2:38 [General Jury Instructions-Commentary-Self Defense of Person] p. 2-72 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: The determination of the reasonableness of the defendant’s belief in the need to defend must be based upon an objective view of the circumstances from the defendant’s perspective. (See NCJIC 48.1 [General Principles].) These circumstances encompass any prior experiences the defendant had which could provide a reasonable basis for a belief that the other person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances. (See Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:20 [Defenses-Justification] p. 269 (West, 1999); see also People v. Goetz (NY 1986) 497 NE2d 41, 52-53.)

    Thus, on the issue of self-defense, the jury should be instructed to examine the circumstances from the defendant's viewpoint and, considering his background, including his physical and mental condition, his knowledge and prior experiences, to determine whether the defendant, in the situation in which he found himself, honestly and in good faith was justified in believing himself to be in imminent danger from deadly physical force. (See e.g., NCJIC 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person]; see also NCJIC 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief]; see also NCJIC 48.1.3 [Objective Reasonable Person Standard: Consideration Of Past Experiences].)

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: As a practical consideration the types of weapons now available drastically affect the determination of self defense. Hence, in some circumstances it may be appropriate to provide special instruction to assure that the jury considers this crucial factor, especially if it is the focus of a defense theory.

POINTS AND AUTHORITIES: On question of self-defense, the nature of the weapons involved is a "crucial consideration in determining both the reasonableness of the force exerted and the reasonableness of attempts to retreat." (Commonwealth v. Shaffer (MA 1975) 326 NE2d 880, 884.)

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding the issue of the reasonableness of the force used by the defendant, consider such matters as the nature of the weapons, if any, used by or available to either party.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: The reasonableness of the defendant's response to an attack may in part be governed by the relative sizes of the parties.

POINTS AND AUTHORITIES: Where there is an issue as to whether the defendant provoked the difficulty, the relative strength and size of the parties may be a matter for instruction. (See Garraway v. State (AL 1976) 337 So2d 1349, 1351-54; Lambert v. State (MD 1987) 519 A2d 1340, 1345; Finnegan v. State (MD 1976) 364 A2d 124, 128-29; Jahner v. Jacob (ND 1975) 233 NW2d 791, 797-98 ["In determining whether only reasonable and necessary force was used by the person claiming to have acted in self-defense, the relative physical strength of the attacker and the party attacked, differences in their ages or sex, are to be taken into consideration"]; People v. Goetz (NY 1986) 501 NYS2d 326 ["the jury should be instructed to examine the circumstances from the defendant's viewpoint and, considering his background, including his physical and mental condition"]; Smith v. State (TX 1967) 411 SW2d 548, 552; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:20 [Defenses-Justification] p. 269 (West, 1999); McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 12:1100:70 [Apparent Danger-Right To Strike First And Pursue Adversary] (James Publishing, 2000) notes; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:07, comment ["the court should take into account the defendant’s and victim’s respective sizes, their gender, whether there were multiple assailants, and the past violent conduct of the victim, if any, known to the defendant"] p. 482 (Micpel, 1999); but see Rodriquez v. State (TX 1986) 710 SW2d 60, 63 (Teague, J., concurring) [new code abrogated right to instruction on relative size and strength of parties].)

    See also NCJIC 101.1.5.8 [Rape/Sex Crimes: Consideration Of Relative Age, Size and Strength Of The Parties].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding the issue of reasonableness of the force used by the defendant, consider such matters as the relative size and strength of ______________ (name of alleged victim) and the defendant. (name of alleged victim) and the defendant.

[Source: NCJIC.]

    Consider the relative sizes, ages and weights of the ____________ (name of alleged victim) in considering whether the defendant's decision to use force was reasonable and, if so, how much force was reasonably necessary under the circumstances. (name of alleged victim) in deciding the question of whether the defendant's decision to use force was reasonable and, if so, how much force was reasonably necessary under the circumstances.

[See generally Jahner v. Jacob (ND 1975) 233 NW2d 791, 797-98; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 10.3 [Relative Sizes, Ages, and Weights] p. 276 (South Carolina CLE, 1994).]

    Consider the relative physical abilities and capacities of the defendant and _______________ (name of alleged victim) in deciding whether the prosecution has met its burden of disproving self defense.

[Cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 3.04(d) [Justifiable Use Of Deadly Force] p. 50 (Florida Bar, 2000).]

    In deciding whether the prosecution has met its burden of disproving self defense beyond a reasonable doubt, consider the size, age and strength of the defendant as compared to _____________ (name of alleged victim).  Also, consider the fierceness of the assault, if any, upon the defendant, whether or not _______________ (name of alleged victim) had a weapon, and the violent reputation of _______________ (name of alleged victim). (name of alleged victim).  

[See generally Jahner v. Jacob (ND 1975) 233 NW2d 791, 797-98; People v. Goetz (NY 1986) 501 NYS2d 326; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 206.10 [First Degree Murder Where A Deadly Weapon Is Used, Covering All Lesser Included Homicide Offenses And Self Defense] ¶ 10, last sent. (TRCC, 1999).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

    See NCJIC 253.4.13 [Multiple Assailants].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

RATIONALE: For the jury to reliably evaluate the self defense theory it must consider all of the circumstances from the defendant's position.

POINTS AND AUTHORITIES: See State v. Allery (WA 1984) 682 P2d 312, 314-15 [standing by itself, without additional instructions general instruction was inadequate because it did not instruct the jury to consider the conditions as they appeared to the slayer, taking into consideration all the facts and circumstances known to the slayer at the time and prior to the incident].

    See also NCJIC 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person].

    See also NCJIC 48.1.4 [Reasonable Person's Standard: Consideration Of Defendant’s "Situation"].

    See also NCJIC 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances From Defendant’s Perspective].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In judging ____________'s (defendant) action you should attempt to place yourself in [his] [her] position at the time of the incident. You should therefore consider [his] [her] past and present knowledge, [his] [her] beliefs, the relative size and strength of the participants, ____________'s (alleged victim) words and actions prior to the shooting, the history of their marital relationship, and all other factors bearing on the reasonableness of [his] [her] her actions and her apprehensions at the time as they appeared to [him] [her].

[Source: Adapted from State v. Allery (WA 1984) 682 P2d 312, 314.]

    In judging _____________'s (defendant) actions, place yourself, as a reasonable person, in [his] [her] position at the time of the incident. Consider all the facts and circumstances known to [him] [her], including those known substantially before the incident.

[Source: Adapted from State v. Allery (WA 1984) 682 P2d 312, 314.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

- VOLUME 11 - CHAPTER 253

RATIONALE: A factor which may be relevant to the issue of self defense is a comparison of the injuries, if any, received by the parties.

POINTS AND AUTHORITIES: See State v. Blakeney (VT 1979) 408 A2d 636, 641 ["In determining whether reasonable force was used, we see no error on the trial court's part in allowing a jury to view the injuries, or lack thereof, sustained by one claiming self-defense as compared to those sustained by the alleged aggressor"].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    In deciding whether the prosecution has proved that amount of force used was unreasonable, consider the injuries, or lack thereof, sustained by __________________ (defendant), as compared to those sustained by ___________________ (name of alleged victim).

[See State v. Blakeney (VT 1979) 408 A2d 636, 641; see aslo Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 6.43 [Instruction: Self Defense-General] ¶ 5, sent. 4 (Lexis, 1993).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

    253.4.11.16    Self Defense: Reasonable Person Standard -- No Duty To Retreat: Jury May Still Consider Unavailability Of Retreat

RATIONALE: Even if retreat is not a prerequisite to lawful self defense, the fact that no retreat was available should be considered by the jury in deciding whether the defendant's use of force was reasonable.

POINTS AND AUTHORITIES: "Within the common law of self defense there developed the rule of retreat to the wall, which ordinarily forbade the use of deadly force by one to whom an avenue for safe retreat was open. This doctrine was but an application of the requirement of strict necessity to excuse the taking of human life, and was designed to ensure the existence of that necessity....In a majority of American jurisdictions, contrarily to the common law rule, one may stand his ground and use deadly force whenever it seems reasonably necessary to save himself...." (U.S. v. Peterson (DC Cir. 1973) 483 F2d 1222, 1234-36; see also Cook and Hermann, Criminal Defense Checklist (West, 1999) § 3.06(4) ["a common law, one who had a reasonable opportunity to safely retreat from an assault had the obligation to do so unless it required the person to abandon the home. There is presently a split of authority as to whether retreat is necessary"].)

    The middle ground rule regarding retreat imposes no duty to retreat in recognition of the fact that, when faced with a real or apparent threat of serious bodily harm or death itself, the average person lacks the ability to reason in a restrained manner how best to save himself and whether it is safe to retreat. (See Gillis v. U.S. (DC App. 1979) 400 A2d 311, 313.)

    "But this middle ground does permit the jury to consider whether a defendant, if he safely could have avoided further encounter by stepping back or walking away, was actually or apparently in imminent danger of bodily harm. In short, this rule permits the jury to determine if the defendant acted too hastily, was too quick to pull the trigger." (Ibid.; U.S. v. Loman (7th Cir. 1977) 551 F2d 164, 168 [even if retreat is not a prerequisite to the availability of self defense, the availability or lack of availability of an avenue of retreat may be relevant to the jury’s consideration of the self defense claim].) Conversely, if there was no opportunity to retreat this provides an added basis for the jury to consider that the defendant acted reasonably.

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 2.3; 4.1; 7.1].

NOTE: See LaFave & Scott, Substantive Criminal Law (West, 1986) re: difference between duty to retreat depending on whether nondeadly or deadly force is used. According to LaFave & Scott, retreat is never required before using nondeadly force.

A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL [Exception-Retreat] p. 2-81 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).

Wharton’s Criminal Law (West, 15th Ed. 1993) § 128, pp. 192-200.

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    There is no duty to retreat. However, in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant did not reasonably believe the amount of force used was necessary, consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 810 [Privilege: Self Defense: Retreat] (University of Wisconsin Law School, 1999).]

    If the defendant could have safely retreated, but did not do so, [his] [her] failure to retreat is a circumstance to consider, together with all circumstances in deciding whether [he] [she] went farther in repelling the danger, real or apparent, than [he] [she] was justified in doing under the circumstances. However, if the defendant actually believed and had reasonable grounds to believe that [he] [she] was in imminent danger of death, or serious bodily harm, and that deadly force was necessary to repel such danger, [he] [she] was not required to retreat, or to consider whether he could safely retreat. In that case, [he] [she] was entitled to stand [his] [her] ground and use such force as was reasonably necessary under the circumstances, to save [his] [her] life or protect [himself] [herself] from serious bodily harm.

    On the other hand, if retreat was not feasible consider this factor, together with all the circumstances, in deciding whether the defendant's use of force was reasonable under the circumstances.

[See Gillis v. U.S. (DC App. 1979) 400 A2d 311, 313.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: Self defense requires the jury to consider the circumstances as the defendant subjectively believed them to be a the time he defended himself. (See State v. Estrada (HI 1987) 738 P2d 812, 826 [jury must consider circumstances as defendant believed them to be]; HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 7.01 commentary [Self-Defense ] (West, 1998); but see State v. Pemberton (HI 1990) 796 P2d 80, 85 [instruction focusing the jury on "defendant’s position under the circumstances shown in the evidence" was misleading and erroneous].)

    See also NCJIC 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

    See NCJIC 256.1 [Battered Person’s Syndrome].   

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

    See generally NCJIC 250.8.1 [Cultural Background As Defense Theory].