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

    253.4.2 Self Defense: Right To Instruction

    253.4.2.1 Self Defense As An Inalienable Right
    253.4.2.2 Self Defense: Duty To Instruct
    253.4.2.3 Duty To Instruct On Self Defense When Defendant Has Not Testified
    253.4.2.4 Self Defense: Showing Of Aggressive Character, Prior Threats, Etc., By Assailant Not Necessary
    253.4.2.5 Applicability Of Self Defense Regardless Of Whether The Victim Died
    253.4.2.6 Sexual Attack As Justification For Use Of Deadly Force
    253.4.2.7 Instruction On Both Self Defense And Accident
    253.4.2.8 Self Defense Relevant To Recklessness
    253.4.2.9 Instruction On Self Defense Should Be Tailored To The Circumstances

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PRACTICE NOTE: Self defense and defense of others is considered "justifiable homicide," an inalienable right at common law. (See U.S. v. James (9th Cir. 1998) 139 F3d 748, 754 (WITHDRAWN; REHEARING GTD) dissent ["self defense is about as basic a moral and legal principle as there is"]; see also Cochran v. State (MS 1973) 278 So2d 451, 452 ["jury instructed that right of self defense is one of our inalienable rights"]; People v. McManus (NY 1986) 496 NE2d 202, 205; State v. Hardy (OH 1978) 397 NE2d 773, 776-77 [discussing state constitutional right to defend life]; but see Kalomidos v. Village of Morton Grove (IL 1982) 470 NE2d 266, 270 [right to use commonly owned arms for self-defense is not, by virtue of Ninth Amendment, absolute and inalienable right which cannot be impinged].)

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: Generally, the court should be obligated to instruct on self defense when warranted by the evidence. (See e.g., State v. Spurgeon (MO 1987) 730 SW2d 595, 596 [if there is substantial evidence putting self defense in issue it is the duty of the trial court to instruct on self defense as a part of the law of the case whether or not the defendant requested the instruction].)

    See generally FORECITE National™ 3.2.5 [Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence].

    See also FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].

    See also FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].

    See also FORECITE National™ 250.2 [Evidentiary Requirements For Defense Theory Instruction].

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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    See FORECITE National™ 250.2.2 [Defendant Need Not Testify To Obtain Instruction On Defense Theory].

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: When the defendant presents specific evidence regarding the character or prior conduct of the alleged victim, the jury may improperly assume that rejection of this specific evidence also requires rejection of the entire self defense theory.

POINTS AND AUTHORITIES: See State v. Newell (NH 1996) 679 A2d 1142, 1144-45 [it is not necessary for the defendant to establish that the assailant had an assaultive or aggressive character in order to rely on self defense].

    See also FORECITE National™ 253.4.2.2 [Self Defense: Duty to Instruct].

    See also FORECITE National™ 253.4.3.2 [Specification Of Prosecution's Burden].

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].

    The defendant has presented evidence of ________________'s (name of alleged victim) __________________________ (e.g., assaultive character, prior threats, etc.).

    However, it is not necessary for you to find that ______________________ (name of alleged victim) _________________________ (e.g., had an assaultive character, made prior threats, etc.) for you to rely on defendant's self defense theory.

    If in light of all the evidence, the prosecution has failed to disprove the self defense theory beyond a reasonable doubt, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

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PRACTICE NOTE: "The important issue is the defendant’s mental state in committing the crime, not whether the victim in fact died." (State v. Cowen (WA 1997) 939 P2d 1249, 1253.)

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: See Rasmussen v. Commonwealth (KY 1986) 705 SW2d 914 [murder defendant who claimed that the victim's death ensued when victim tried to sodomize appellant was entitled to an instruction to the jury on the justifiability of the use of deadly physical force in the protection against sexual intercourse compelled by force or threat].

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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    253.4.2.7    Instruction On Both Self Defense And Accident

PRACTICE NOTE: In a prosecution for unlawful homicide, the defendant may be entitled to an instruction on accident and self defense. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 138, p. 236; see also Taylor v. Withrow (E.D.Mich. 2001) 154 FSupp2d 1037 [defendant drew gun in self-defense but testified that it discharged accidentally]; Koritta v. State (GA 1994) 438 SE2d 68; Commonwealth v. Wilson (PA 1994) 639 A2d 1194 [instruction on both self defense and accident permissible where defendant testified that shooting was accidental but testimony did not foreclose self defense]; State v. McCaskill (SC 1990) 387 SE2d 268; State v. Callahan (WA 1997) 943 P2d 676, 680 [error to refuse instruction on both self defense and accident]; but see Wyatt v. State (TX 1994) 889 SW2d 691, 694-95 [conflicting testimony will not support both charges when defendant repeatedly denies he was acting in self defense].)

CAVEAT: Some courts have held that the defendant is not entitled to instructions on both self defense and accident if the defenses are based solely on the defendant’s own testimony. (See e.g., People v. Curtis (CA 1994) 30 CA4th 1337, 1357-58 [37 CR2d 304] [no right to "imperfect" self defense when inconsistent with defendant’s testimony that gun discharged accidentally]; Grimes v. McAnulty (KY 1997) 957 SW2d 223, 227 [defendant cannot rely alternatively on accident and self defense without presenting affirmative evidence of self defense (overruling Pace v. Commonwealth (KY 1978) 561 SW2d 664)].)

    See also FORECITE National™ 250.2.5 [Right To Instruction On Inconsistent Defenses].

    See also FORECITE National™ 253.4.2.7 [Instruction On Both Self Defense And Accident].

    See also FORECITE National™ 255.3.2.5 [Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood].

    See also FORECITE National™ 253.4.1.2 [Brandishing A Deadly Weapon In Self Defense].

Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 473, p. 67.

See also 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: If the defendant was acting reasonably in the exercise of self defense then his or her conduct did not create an unreasonable risk to another and, hence, was not reckless.

POINTS AND AUTHORITIES: Self defense does not necessarily entail an intent to kill.  Obviously, one can utilize nondeadly force in the exercise of lawful self defense.  (See FORECITE National™ 253.4.1.6 [Self Defense -- Defense Of Others: Should Apply To Both Threat Of Force And Use Of Force].)  Hence, self defense should be available as a defense to a charge of reckless or wanton homicide.  (See e.g. Elliot v. Commonwealth (KY 1998) 976 SW2d 416, 422 [Kentucky Supreme Court held that a defendant accused of reckless homicide could assert self protection and other statutory justifications as defenses to charges of wanton murder, second-degree manslaughter or reckless homicide as well as to charges of wanton or reckless assault].)

    See also FORECITE National™ 255.4.4.3 [Consideration Of Self Defense When Deciding The "Unreasonable Risk" Component Of Recklessness].

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].

    The crime of __________ (name of crime) requires proof beyond a reasonable doubt that a person's conduct created an unreasonable and substantial risk of death or great bodily harm to another person and that the defendant was aware that his conduct created such a risk. A person who is acting reasonably in the exercise of self defense does not create such an unreasonable risk to another.

    The prosecution has the burden of disproving self defense beyond a reasonable doubt.  If, after careful consideration of all the evidence, you have a reasonable doubt that the prosecution has met its burden of disproving self defense you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1345 [First Degree Recklessly Endangered Safety] ¶ 3 (University of Wisconsin Law School, 1999).]

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RATIONALE: Because the circumstances relevant to the reasonableness of a person's use of force can vary, it may be appropriate to tailor the self defense instructions to the circumstances.

POINTS AND AUTHORITIES: See FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard]; see also State v. Fuller (SC 1989) 377 SE2d 328, 330-31.

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].

    In attempting to decide if the prosecution has proved 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 hostile acts and/or words by __________ <name of alleged victim>.

    2.    Prior threats or aggressive acts by __________ <name of alleged victim>.

    3.    The relative sizes, ages, and weight of the defendant and __________ <name of alleged victim>.

    4.    Any violent reputation of __________ <name of alleged victim>.

    5.    How many alleged aggressors were involved.

    6.    Any battered person evidence.

    7.    The defendant's background, education, lack of education, or any other mental or psychological deficiencies that might have an effect upon whether 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).]