FORECITE National™
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

    253.4.9 Self Defense: Prior Acts Or Threats

    253.4.9.1 Prior Acts Or Threats: Right To Instruction
    253.4.9.2 Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response
    253.4.9.3 Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault
    253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim
    253.4.9.5 Application Of Prior/Antecedent Threat Doctrine To Recent Threats
    253.4.9.6 Self Defense: Consideration Of Prior Relationship Between Defendant And Victim
    253.4.9.7 Self Defense: Knowledge Of Prior Acts of Violence Against Others
    253.4.9.8 Prior/Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
    253.4.9.9 Failure To Give Prior Threat Instruction As Reversible Error
    253.4.9.10 Failure To Request Prior/Antecedent Threat Instruction As Ineffective Assistance Of Counsel
    253.4.9.11 Instruction On Prior Threats By Gang Members

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

 VOLUME 11 - CHAPTER 253

RATIONALE: When a person has received prior threats from another person the entire calculus of their relationship is changed. For example, an act which ordinarily might not justify self defense (e.g., reaching into a pocket) could trigger lawful self defense when considered in light of prior threats. Hence, the impact of such threats can be an essential defense theory upon which instruction may be appropriate.

POINTS AND AUTHORITIES: One who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats. (See e.g., Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395] [prior threats relevant to justify "promptness to repel attack ..."]; People v. Moore (CA 1954) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (CA 1978) 84 CA3d 294, 302-04 [148 CR 430]; People v. Taylor (MI 1992) 489 NW2d 99, 101 [antecedent threat admissible to show that defendant had access to weapon]; Fielder v. State (TX 1988) 756 SW2d 309, 319-20 [threats made by the alleged victim against the defendant either at the time of the confrontation or antecedent threats made earlier, may be considered as circumstances in deciding the reasonableness of the defendant’s belief in the need to use self defense]; Lewis v. Commonwealth (VA 1884) 78 Va. 732, 734 ["The court instructs the jury that the threats made by the deceased prior to the day of killing -- as well as those made to the prisoner in person [and] those made to others and communicated to the prisoner -- are to be considered by them in the determination of the question as to whether the accused had, at the time of the killing, a reasonable ground to apprehend that the deceased intended to do him [the prisoner] serious bodily harm"]; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 10.2 [Prior Difficulties] p. 275 [prior altercations between the defendant and the alleged aggressor may be relevant to whether a threat existed, to whether defendant had reason to believe a threat existed, and to how serious the threat was"] (South Carolina CLE, 1994).)

    Prior acts of violence may be similarly relevant. (See Hunter v. State (AL 1975) 325 So2d 921, 925; State v. Peoples (MO 1981) 621 SW2d 324, 328-29 [where evidence of self-defense shows antecedent threat or violence by victim upon defendant, court must instruct jury, whether requested or not, on how to consider evidence, as such acts may bear on self-defense]; see also FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character].)

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

USE NOTES: Mandatory Consideration. Even though many of these sample instructions inform the jury that it "may" or "should" consider the evidence, it may be argued that consideration of the evidence should be mandatory. (See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].)

Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault.  (See FORECITE National™ 253.4.9.3 [Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault].)

Antecedent Threats By Associates Of The Victims. (See FORECITE National™ 253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim].)

Application Of Antecedent Threat Doctrine To Recent Threats. (See FORECITE National™ 253.4.9.5 [Application Of Prior/Antecedent Threat Doctrine To Recent Threats].)

Annotation, Admissibility Of Threats To Defendant Made By Third Parties To Support Claim Of Self Defense In Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449.

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

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

    One who has received threats against [his] [her] life or person made by another is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats.

    If in this case you believe that __________ [insert name of deceased or assault victim] made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or assault victim], you are to consider such facts in determining whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

[Source: FORECITE National™.]

    Evidence has been presented of alleged past threats against the defendant by ________________ (insert name of deceased).

    Consider such evidence in determining who was the aggressor.  Also, if the evidence of alleged past threats was known to the defendant at the time of the alleged crime consider such evidence in determining the reasonableness of the defendant's fear of danger to [his] [her] safety.

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(d) [Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of the Deceased-Prior Threats By The Deceased Against The Defendant Known By The Defendant] p. 838 (Lexis, 2nd ed. 1988).]

    Evidence has been presented of alleged past threats against the defendant by ________________ (insert name of deceased).

    Even if you find that the defendant was not aware of these prior threats consider such evidence on the question of who was the aggressor.

[See FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(e) [Self-Defense-Prior Acts, Reputation (Or Opinion) And Threats Of The Deceased-Prior Acts Of Violence By Th Deceased Known By The Defendant] p. 838-39 (Lexis, 2nd ed. 1988).]

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 10.2 [Prior Difficulties] p. 275 (South Carolina CLE, 1994).]

    Words, threats and menaces may, in some circumstances, be sufficient to arouse in the mind of the person to whom they are directed, a reasonable fear that his life is in immediate danger, or that a felony is about to be committed on his person.

[Source: Facison v. State (GA 1979) 263 SE2d 523, 524; see also Moore v. State (GA 1972) 187 SE2d 277, 278.]

    Evidence has been presented of alleged past acts of violence by _____________ (insert name of deceased) which were known by the defendant.

    Where there is evidence of past acts of violence by the deceased that were known by the defendant, consider such evidence in deciding the reasonableness of the defendant's fear of danger to his safety.  Also, consider such evidence even if not known by the defendant in deciding who was the aggressor

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(a) [Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of The Deceased-Prior Acts Of Violence By The Deceased Known By The Defendant] pp. 836-37 (Lexis, 2nd ed. 1988).]

    Evidence has been introduced of acts of violence not involving the defendant committed by ________________ (name of victim) and that the defendant was aware of these acts. Consider this evidence in deciding whether the defendant reasonably believed [he] [she] was in imminent danger of harm from ____________ (name of victim). 

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use Of Force In Self-Defense] ¶ 4 (Missouri Supreme Court Publications, 3rd ed. 1987); see also State v. Bashe (MO 1983) 657 SW2d 321, 325-26 [instruction is mandated when there is testimony as to a specific act of violence.]

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395];  cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or Decedant] ¶ 1(ICLE, 2nd ed. 1999).]

    Consider any evidence that ______________ (name of alleged victim) had a reputation for cruelty or violence when you decide whether it was likely ______________ (name of alleged victim) threatened the defendant, and whether the defendant honestly and reasonably feared for [his/her] safety.

[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or Decedant] ¶ 2 (ICLE, 2nd ed. 1999).]

    Evidence has been introduced that ________________ (name of alleged victim) had a reputation for ______________ and that the defendant was aware of that reputation. Consider this evidence in deciding whether the defendant reasonably believed [he] [she] was in imminent danger of harm from ________________ (name of alleged victim).  Also, even if the defendant was not aware of such evidence, consider it deciding who was the initial aggressor.

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use Of Force In Self-Defense] ¶ 2 (Missouri Supreme Court Publications, 3rd ed. 1987).]

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

 VOLUME 11 - CHAPTER 253

    253.4.9.2    Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response

RATIONALE: The defendant's knowledge of the alleged victim's prior acts of violence and/or assaultive character is relevant to whether the defendant reasonably believed in the need to use self defense. Without a defense theory instruction on this issue the jury may not understand how to use such evidence.

POINTS AND AUTHORITIES: When the issue is the accused's state of mind, the prior acts, character or reputation of the deceased may be relevant if the defendant was aware of them. (See e.g., State v. Gantt (LA 1993) 616 So2d 1300, 1304-05 [defendant may introduce specific acts of victim known to defendant, which affected defendant's state of mind and which jury could consider in determining whether defendant acted in self-defense]; State v. Collins (CT 2002) 793 A2d 1160 [alleged victim's abuse of defendant tends to show that the defendant in fact feared the alleged victim and was reasonable in doing so]; Commonwealth v. Fisher (PA 1985) 493 A2d 719, 723 [prejudicial ineffective counsel for failure to request instruction on victim's prior acts of violence against defendant because jury did not know that victim's prior violent acts could serve as basis for defendant's belief that serious bodily injury was imminent]; DePetris v. Kuykendall (9th Cir. 2000) 239 F3d 1057, 1061-63; Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [federal constitutional error to exclude husband's prior violent behavior toward former wife and others to show wife's subjective belief in the need to defend herself].)

    See also FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character].

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

USE NOTE: Mandatory Consideration. Even though many of these sample instructions inform the jury that it "may" or "should" consider the evidence, it may be argued that consideration of the evidence should be mandatory. (See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].)

PRACTICE NOTE: The sample below does not discuss the use of specific acts of violence against other on the issue of who was the assailant. However, the person's character trait for violence may be admissible on the question of who was the aggressor. (See FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character].)

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

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

    Evidence has been presented of the alleged violent and dangerous character of _____________ (insert name of deceased) which was known to the defendant.

    Consider any [reputation] [opinion] evidence of the violent and dangerous character of the deceased that was known by the defendant in deciding who was the aggressor.  Also consider such evidence even if not known by the defendant in deciding the reasonableness of the defendant's fear of danger to his safety.

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(b) [Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of The Deceased-Reputation (Or Opinion) Of The Deceased Violent And Dangerous Character Known By The Defendant] p. 837 (Lexis, 2nd ed. 1988).]

    In attempting to decide whether the prosecution has disproved the defendant's claim of self defense beyond a reasonable doubt, consider that the reputation of a person as a violent person may be relevant as to whether defendant had reason to believe there was a need for force and whether deadly force was reasonably necessary.

[See State v. Franklin (SC 1976) 226 SE2d 896, 899; State v. Hill (SC 1924) 123 SE 817; State v. Boyd (SC 1923) 119 SE 839; cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS  VI (A) 10.4 [Reputation Of Assailant] (South Carolina CLE, 1994).]

    Two issues for you to consider regarding the claim of self defense are whether the defendant actually and reasonably believed [he] [she] was in imminent danger of losing [his] [her] life or sustaining serious bodily injury. In deciding these issues, consider prior instances of violence or of unprovoked aggression by ________________ (name of alleged victim).

    Remember that it is the prosecution's burden to prove beyond a reasonable doubt that the defendant did not act in self defense.*

* See FORECITE National™ 253.4.3.2 [Self Defense: Specification Of Prosecution's Burden].

[See State v. Fuller (SC 1989) 377 SE2d 328, 330; State v. Bellamy (SC 1987) 359 SE2d 63, 65 [uncommunicated threats]; State v. Davis (SC 1984) 317 SE2d 452, 453; cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS 10.5 [Prior Incidents Of Violence By Assailant ] (South Carolina CLE, 1994).]

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

 VOLUME 11 - CHAPTER 253

RATIONALE: Where a prior threat is made by one person and the subsequent assault by another person, a special instruction may be necessary to assure the jury understands that the prior threat must still be considered if the defendant believed the person making the assault was the same person who made the prior threat.

POINTS AND AUTHORITIES: People v. Gonzales (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267].

    See also FORECITE National™ 253.4.9.6 [Self Defense: Consideration Of Prior Relationship Between Defendant And Victim].

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 the assault is by a person other than the person who made the prior threat, then the defendant is justified in acting more quickly and taking harsher measures only if the defendant fact believed the individual making the assault was the same individual who had previously assaulted him.

[Source: People v. Gonzales (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267].]

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

 VOLUME 11 - CHAPTER 253

RATIONALE: Prior threats are relevant to self defense even if they were made by a person other than the alleged victim if the defendant reasonable believed the person making the threat was associated with the victim. Special instruction may be needed for the jury to understand this point and such instruction may be especially appropriate if it is a defense theory.

POINTS AND AUTHORITIES: One who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats. (See FORECITE National™ 253.4.9.1 [Prior Acts Or Threats: Right To Instruction]; see also FORECITE National™ 253.4.9.2 [Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response].) The same principle applies when the threats were made by members or associates of a group who, in the defendant's mind, was reasonably associated with the victim. (People v. Minifie (CA 1996) 13 C4th 1055 [56 CR2d 133]; McBride v. U.S. (DC App. 1982) 441 A2d 644, 650-51 [threats communicated by persons other than complainant may shed light on defendant's state of mind if defendant reasonably believed that third persons were acting against her in concert with complainant].)

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

Annotation, Admissibility Of Threats To Defendant Made By Third Parties To Support Claim Of Self Defense In Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449.

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

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

    One who has received threats against [his] [her] life or person made by [a group] [or] [a person other than _____________ (insert name of alleged victim)] is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats provided the person receiving the threats reasonably associated (insert name of alleged victim) with those threats.

[Source: FORECITE National™.]

    The defendant contends that _________ [insert name of third party and/or group] made prior threats against the defendant, that the defendant reasonably associated __________ [insert name of alleged victim] with such threats and, that because of such threats, defendant had reasonable cause to fear greater peril in the event of an altercation with _________ [insert name of alleged victim]. Consider this contention, and any evidence relevant to it, in deciding whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

[Source: FORECITE National™.]

    One who has received threats against [his] [her] life or person made by [a group] [or] [a person other than _____________ (insert name of alleged victim)] is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats provided the person receiving the threats reasonably associated (insert name of alleged victim) with those threats.

    The defendant contends that _________ [insert name of third party and/or group] made prior threats against the defendant, that the defendant reasonably associated __________ [insert name of alleged victim] with such threats and, that because of such threats, defendant had reasonable cause to fear greater peril in the event of an altercation with _________ [insert name of alleged victim]. Consider this contention, and any evidence relevant to it, in deciding whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

[Source: FORECITE National™.]

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

 VOLUME 11 - CHAPTER 253

RATIONALE: In situations where the prior threat is close in time to the use of force, the prior threat rule is still applicable and a defense theory instruction may be appropriate.

POINTS AND AUTHORITIES: While the antecedent threat doctrine has typically been considered in circumstances involving prior threats or violence by the victim on previous occasions (see e.g., People v. Bush (CA 1978) 84 CA3d 294, 303-04 [148 CR 430]), the rationale of the doctrine applies to any violence or threat which precedes the act of defense. "A person claiming self defense is required to 'prove his own frame of mind,' and in so doing is 'entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.' [Citation.]" (People v. Minifie (CA 1996) 13 C4th 1055, 1065 [56 CR2d 133].) "The defendant's perceptions are at issue...[and therefore]...threats are relevant to the defendant's state of mind -- a matter 'of consequence to the determination of the action' -- and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified." (Minifie, 13 C4th at 1066.)

    Accordingly, a long line of California cases have held that prior threats or violence by the victim justify an instruction informing the jury that such threats or violence justify the defendant in acting more quickly and taking harsher measures for his or her own protection than would be a person who had not received such threats. (See People v. Gonzalez (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Moore (CA 1954) 43 C2d 517, 528 [275 P2d 485]; see also FORECITE National™ 253.4.9.1 [Prior Acts Or Threats: Right To Instruction].)

    While these and other antecedent threat cases involve threats on previous occasions, the same concerns apply to threats or violence which are near or contemporaneous to the act of defense. As observed by the U.S. Supreme Court: "Here the threats were recent and were communicated, and were admissible in evidence as relevant to the question of whether defendant had reasonable cause to apprehend and attack...and hence was justified in acting on a hostile demonstration and one of much less pronounced character than if such threats had not preceded it. They were relevant because indicating cause of apprehension of danger and reason for promptness to repel attack...." [Emphasis added.] (Allison v. United States (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395].)

    Similarly, State v. Peoples (MO 1981) 621 SW2d 324, 327, summarized this principle as follows: "The developed law of self defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of the victim, and described acts of violence by the victim upon the defendant as those incidents may bear to prove the basic elements of the defense. [Citations.] A mere direction to the jury to consider such proofs does not suffice. That is because those aspects of evidence are 'the very heart of self defense.' [Citation.]... In a word: such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of the basic self defense instruction. [Citations.] Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense, and not at the time of a determined provocation by the victim. They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. [Citations.]" [Emphasis added.]

    Similarly, the Alabama courts have long held that the accused is entitled to an instruction which focuses on the defense theory of victim threats or violence. (See Quinlivan v. State (AL 1989) 555 So2d 802, 804.) This instruction is required "when a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death." (Ibid.) "'An accused is entitled to the charge in question whenever some evidence of self defense has been offered and some testimony of a threat and its attempted execution has been presented.' [Citation.]" (Ibid.)

    Nor do general self defense instructions, which do not specifically address the issue of threats or violence by the victim, suffice. "[E]ven though the trial court 'fully and fairly' instructs the jury on the defense of self defense, because the general law of self defense does not cover the situation expressed in the charge [the victim threat/violence instruction should be given on request]." (Quinlivan, 555 So2d at 204; see also Hunter v. State (AL 1975) 325 So2d 921, 926 [threat concept not covered by other charges which had "no mention of 'threats'"]; State v. Peoples, supra, 621 SW2d at 328 [evidence of threat and act of violence by victim shortly before the act of defense required sua sponte instruction on antecedent threats and failure to so instruct was prejudicial error].)

    See FORECITE National™ 253.4.9.6 [Self Defense: Consideration Of Prior Relationship Between Defendant And Victim]; FORECITE National™ 253.4.9.2 [Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response].

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

RESEARCH NOTES:

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

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

   In evaluating whether the defendant acted reasonably, consider any evidence that before the incident, ________ (name of victim) made a threat or threats against the defendant, and because of this, as well as all the other circumstances, the defendant had reasonable cause for believing [he] [she] was in imminent danger of death or injury.

[Cf. IOWA CRIMINAL JURY INSTRUCTIONS 400.12 [Previous Threats Against Defendant] (Iowa State Bar Association, 1991).]

    I charge you, members of the jury, that while threats alone will not serve as a justification for a homicide, if the jury believes* from the evidence that the deceased, at the time of the homicide, was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may** then consider the threats made by the deceased in justification of the homicide.

* But see FORECITE National™ 6.2.22 ["If you find..." Language Improperly Shifts Burden To Defendant].

** But see FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

[Source: Quinlivan v. State (AL 1989) 555 So2d 802, 804.]

For additional sample instructions on prior/antecedent threats see FORECITE National™ 253.4.9 [Self Defense: Prior Acts Or Threats].

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

 VOLUME 11 - CHAPTER 253

RATIONALE: As with prior threats (see FORECITE National™ 253.4.9 [Self Defense: Prior Acts Or Threats]), prior arguments or violent confrontations between the defendant and the alleged victim may critically impact the determination of whether self defense was reasonably justifiable.

POINTS AND AUTHORITIES: See PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, SSJI (crim) 9.505, note [Justification: Use Of Deadly Force In Self Defense, Sample Complete Instruction] (Pennsylvania Bar Institute, PBI Press, 08/85) ["Jury should evaluate conduct of accused in the final confrontation in the light of circumstances that preceded and precipitated the confrontation including altercations between accused and victim earlier in the day"]; see also U.S. v. Saenz (9th Cir. 1999) 179 F3d 686, 688 [defense testimony as to personal knowledge of victim’s past violent acts admissible as to reasonable belief in necessity of using force]; Commonwealth v. Watson (PA 1981) 431 A2d 949, 952 [in determining reasonableness of defendant-wife’s fear that her husband’s attack placed her in mortal peril, relevant factors include history of husband’s abuse of wife and any change in husband’s behavior immediately before wife killed him]; Commonwealth v. Mc Comb (PA 1975) 341 A2d 496.

    See also FORECITE National™ 253.1 [Battered Person’s Syndrome].

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 considering who was the initial aggressor, consider the prior relationship between the defendant and _______________ (name of alleged victim) including any arguments or acts of violence.

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06, Part C [Justification: Use Of Force In Self-Defense] [3] (Missouri Supreme Court Publications, 3rd ed. 1987).]

SAMPLE INSTRUCTION # 2: 2:

    As to the issue of whether the defendant honestly and reasonably believed [he] [she] was in imminent danger of harm from _______________ (name of alleged victim) consider the prior relationship between the defendant and _______________ (name of alleged victim) including any arguments or acts of violence.

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06, Part C [Justification: Use Of Force In Self-Defense] [3] (Missouri Supreme Court Publications, 3rd ed. 1987).]

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

VOLUME 11 - CHAPTER 253

PRACTICE NOTE: The defendant’s awareness of prior acts of violence by the other person is relevant to show both the defendant’s subjective belief in the need for self defense and the reasonableness of that belief. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:20 [Defenses-Justification] (West, 1999).) Such knowledge is relevant to reasonableness because the jury must consider the circumstances the defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him.  (See People v. Goetz (NY 1986) 497 NE2d 41, 51-52; 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).) "The background and other relevant circumstances of a particular actor must not be ignored, since a determination of reasonableness must be based on the ‘circumstances’ facing a defendant or his ‘situation.’ Such terms encompass more than the physical movements of the potential assailant. These terms include any relevant knowledge that the defendant had about that person." (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 FORECITE National™ 253.4.8.1 [Self Defense: Victim’s Previous Bad Acts Or Character Relevant To Both Subjective Belief And Objective Reasonableness].

    See also FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character].

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

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

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

VOLUME 11 - CHAPTER 253

RATIONALE: The jury should consider all the surrounding circumstances when deciding whether or not a particular statement or act is a threat.

POINTS AND AUTHORITIES: Even if the words used are ambiguous or do not literally articulate a threat, the defendant may still reasonably construe the words as a threat when considered together with all the surrounding circumstances. (See People v. Mendoza (CA 1997) 59 CA4th 1333, 1340-41 [69 CR2d 728] [jury must consider all the surrounding circumstances in determining whether words were a "threat" under terrorist threat statute]; see also People v. Manzanares (CO 1996) 942 P2d 1235, 1240 [instruction on self-defense must direct trier of fact to consider totality of circumstances, including number of persons reasonably appearing to be threatening accused].)

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 deciding whether the defendant received a threat against his/her life or person, consider not just the words that were used but all of the surrounding circumstances.

[Source: FORECITE National™.]

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

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: In People v. Jelks UNPUBLISHED (A053527) and People v. Tafoya UNPUBLISHED (3/30/95, B080123), the Court of Appeal reversed for failure to give FORECITE National™'s antecedent threat instruction. (See also People v. Parish UNPUBLISHED (7/18/95, A064582) [reversing for failure to give requested antecedent threat instruction and holding that the other instructions did not adequately cover the relevance of the antecedent threats to the claim of self defense].) 

    People v. Pena (CA 1984) 151 CA3d 462, 475 [198 CR 819] held that the erroneous failure to instruct on antecedent threats is "presumed prejudicial." 

OPINIONS AVAILABLE:  To read the Jelks and Tafoya opinions, click here. [Opinion Bank # O-119a and Opinion Bank # O-119b].  To read the opinion in People v. Parish UNPUBLISHED, click here. [Opinion Bank # O-206].  

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

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

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

 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: The 5th District Court of Appeal has held that it is ineffective assistance of counsel not to request an antecedent threat instruction in the appropriate case. (People v. Marshall UNPUBLISHED (12/16/92) (F016198.) 

OPINION AVAILABLE:  To read the Marshall opinion, click here. [Opinion Bank # O-131].

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

RELATED FEDERAL MODEL INSTRUCTIONS:

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

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

VOLUME 11 - CHAPTER 253

RATIONALE: As with prior threats from other individuals, threats received from gang members should be considered in deciding whether the defendant acted in self defense.

POINTS AND AUTHORITIES: See FORECITE National™ 253.4.9.1 [Prior Acts Or Threats: Right To Instruction].

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

    One whose life or person has been threatened by previous attacks is justified. in acting more quickly and taking harsher measures for his own protection in the event of assault either actual or threatened, than would be a person who had not experienced such attacks.

    If in this case you believe from the evidence that gang members threatened the life or person of the defendant by the attacks made upon him before March 29, 1991 and that the defendant because of such prior attacks had reasonable cause to fear greater peril in the event of a confrontation with gang members than he would have otherwise, you are to take such facts and circumstances into consideration in determining whether, defendant acted in a manner in which a reasonable person would act in protecting his own life or bodily safety.

[Source: FORECITE National™.]