FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 253
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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.6 Withdrawal (see also Self Defense By Aggressor)

    253.4.6.1 Availability Of Self Defense To Aggressor Using Deadly Force: Instruction On Withdrawal/Retreat

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

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: Even an aggressor who uses deadly force does not forever lose the right to defend against counter-attack. (Compare FORECITE National™ 253.4.15.2 [Self Defense By An Aggressor: Non Deadly Aggressor Need Not Withdraw From Deadly Counter-Attack].)

    However, the aggressor, if he or she is to reclaim the defense, must first rid himself of that onus. Most authorities agree this can be accomplished only after the victim has notice that the fight is over. (See e.g., U.S. v. Peterson (DC Cir. 1973) 483 F2d 1222, 1231; People v. Moore (CA 1954) 43 C2d 517, 524 [275 P2d 485]; State v. Brown (LA 1975) 313 So2d 581, 584; State v. Haakenson (ND 1973) 213 NW2d 394, 400; State v. Graham (MN 1972) 195 NW2d 442, 444; State v. Mayberry (MO 1950) 226 SW2d 725, 727; State v. Broadhurst (OR 1948) 196 P2d 407, 431-32; State v. Craig (WA 1973) 514 P2d 151, 156.)

    Hence, "[o]ne is not justified in using force which is either intended or is likely to cause death or great bodily harm if he is the aggressor or if he was engaged in combat by agreement unless he withdraws and effectively communicates to the victim that he intends to do so. [Citation.]" (Farley v. State (GA 1995) 458 SE2d 643, 645.)

Annotation, Withdrawal, After Provocation Of Conflict, As Reviving Right Of Self Defense, 55 ALR3d 1000, 1003-04.

LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(e).

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

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