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 VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.3 Self Defense: Burden Of Proof

    253.4.3.1 Self Defense: Prosecution Must Prove Element Of Unlawfulness
    253.4.3.2 Self Defense: Specification Of Prosecution's Burden

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 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: Where the defense relies on self defense or defense of another to a charge such as assault or battery, the instruction on the charged offense should include the essential element that the defendant's use of force was "unlawful." (State v. Acosta (NM 1977) 939 P2d 1081, 1087.) The error in omitting such an element may not be cured by separate instructions on self defense and defense of another. (State v. Parish (NM 1994) 878 P2d 988, 991-93 [jury instruction that was erroneous in neglecting to instruct on element of unlawfulness after self-defense had been introduced could not be cured by other instructions in voluntary manslaughter trial].)

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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 VOLUME 11 - CHAPTER 253

RATIONALE: Where the unlawfulness of the defendant's conduct is an element of the charge, the prosecution should be required to prove the absence of self defense beyond a reasonable doubt.

POINTS AND AUTHORITIES: In most states, as well as all federal courts, once some evidence of self-defense is in the case, the burden is then on the prosecution to disprove the defense of self-defense beyond a reasonable doubt. (Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100 ["The burden of persuasion is almost always on the State, beyond a reasonable doubt"].) Hence, it is widely recognized that the defense should have the right to an instruction informing the jury of the prosecution's burden to prove that the defendant's use of force was not justified. (See e.g., U.S. v. Jackson (7th Cir. 1978) 569 F2d 1003, 1009-10; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [self-defense: burden of prosecution to disprove]; U.S. v. Sanchez-Lima (9th Cir. 1998) 161 F3d 545, 549; DeGroot v. U.S. (9th Cir. 1935) 78 F2d 244, 253; U.S. v. Corrigan (10th Cir. 1977) 584 F2d 879, 881-83; State v. Davis (AZ 1986) 714 P2d 84, 886 [Arizona Supreme Court held it to be fundamental error to deprive the defendant of a specific burden of proof instruction on self defense]; People v. Sanchez (CA 1947) 30 C2d 560, 570-71 [184 P2d 673]; People v. Pernell (IL 1979) 391 NE2d 85, 86-87; State v. Miller (WV 1990) 401 SE2d 237, 247, fn 14; see also also State v. Burkhart (SC 2002) 565 SE2d 298 [conviction reversed for failure to expressly instruct the jury that the prosecution has a burden of disproving self-defense beyond a reasonable doubt; jury instructions setting out the elements of self-defense in declaring that the state, not the defendant, had the burden of proof on the issue were not adequate].)

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

RESEARCH NOTE:

Self defense: Burden Of Proof. LaFave & Scott, Substantive Criminal Law (West, 1986) § 1.8.

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

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

    The government has the burden of proving that the defendant did not act in self defense. For you to find the defendant guilty, the government must prove that it was not reasonable for him to think that the force he used was necessary to defend himself against an immediate threat. Unless the government proves this beyond a reasonable doubt, you must find him not guilty.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.06 [Self Defense] (1991).]

    The burden of proof is on the government to prove beyond a reasonable doubt the absence of self defense.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.01 [Self Defense] Committee comment (1999).]

    A defendant who relies on self defense does not have the burden of proof on that issue. The prosecution must prove beyond a reasonable doubt that the [homicide] [offense] was not committed in self defense.

[See generally Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100; cf. Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 6.18 [Burden Of Proof-Self Defense] (West, 1994).]

    It is the burden of the State to prove beyond a reasonable doubt that the defendant was not acting in defense of another. If the State has failed to sustain that burden, then you must vote to find the defendant not guilty.

[See generally Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100; cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-5 [Burden Of Proof] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

    Before the defendant may be convicted of any crime, the state must prove beyond a reasonable doubt that the defendant did not act in self defense.

[See generally Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100; cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS 8.14 [Self Defense–Burden Of Proof] (Wyoming State Bar, 1996).]

    Before the defendant may be convicted of the crime of ________, the state must prove beyond reasonable doubt that the defendant did not act in self defense.

[See generally Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100; cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS 8.14 Use Note [Self Defense–Burden Of Proof] Alternative # 2 (Wyoming State Bar, 1996).]

    Self defense is an issue in this case. The burden is on the state to prove that the defendant did not act in self defense. Unless the state proves beyond a reasonable doubt that the defendant did not act in self defense, you shall find the defendant not guilty of the crime of ________.

[See generally Robinson, Criminal Law Defenses (West, 1984) § 132 pp. 99-100; cf. WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS 8.14 Use Note, Alternative # 2 [Self Defense–Burden Of Proof] (Wyoming State Bar, 1996).]

    It is not necessary for the defendant to establish self defense by evidence sufficient to satisfy the jury that the self defense was true, but if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified, then [he] [she] is entitled to an acquittal.

[See People v. Sanchez (CA 1947) 30 C2d 560, 571-72 [184 P2d 673].]

    The burden is on the state to prove beyond a reasonable doubt that __________ did not act in self defense. You must be satisfied beyond a reasonable doubt that [he] [she] was not acting in self defense before you may convict [him] [her]. If from all the circumstances of the case you have a reasonable doubt whether __________ was acting in self defense, you must give [him] [her] the benefit of the doubt and find [him] [her] not guilty.

[See People v. Banks (CA 1977) 67 CA3d 379, 384 [137 CR 652]; People v. Sears (CA 1970) 2 C3d 180, 190 [84 CR 711].]