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255.4 Self Defense, Partial Or Imperfect

    255.4.1 Imperfect Self Defense: Miscellaneous Issues

    255.4.1.1 Imperfect Self Defense: Defense Theory To Charge Of Murder
    255.4.1.2 Imperfect Self Defense As Lesser Included Offense Rather Than Affirmative Defense
    255.4.1.3 Imperfect Self Defense: Applicable To Unreasonable Belief In The Amount Of Force Necessary
    255.4.1.4 Negligent Imperfect Self Defense As Unlawful Act Involuntary Manslaughter
    255.4.1.5 Imperfect Self Defense: Based Upon Doctrine of Recklessness
    255.4.1.6 Imperfect Self Defense: Unreasonable Belief May Invoke Heat Of Passion/Hot Blood Defense
    255.4.1.7 Imperfect Self Defense: Use Of The Term “Partial” Self Defense To Avoid Juror Confusion
    255.4.1.8 Imperfect Self Defense: Right To Expert Testimony On Psychological Profile In Support Of Subjective Belief In The Need To Use Force
    255.4.1.9 Imperfect Self Defense Negates Intent To Act Unlawfully
    255.4.1.10 Imperfect Self Defense: Consideration Of Battered Person Syndrome
    255.4.1.11 Imperfect Self Defense: Consideration Of Culture
    255.4.1.12 Imperfect Self Defense: Definition Of Imminent Danger
    255.4.1.13 Imperfect Self Defense: Definition Of "Wrongful Conduct"

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RATIONALE: When the defendant acts in a good faith belief in a necessity to defend, there is no unlawful intent or malice and the defendant should not be convicted of murder even if the belief was unreasonable.

POINTS AND AUTHORITIES: "Imperfect self defense, i.e., the actual but unreasonable belief that one is in imminent danger of death or great bodily injury, negates malice and thus provides the basis for a verdict of manslaughter rather than murder." (Hardnett v. Marshall (9th Cir. 1994) 25 F3d 875, 880; see also U.S. v. Wharton (DC Cir. 1970) 433 F2d 451, 459; People v. Uriarte (CA 1990) 223 CA3d 192, 197 [272 CR 693]; FORECITE National™ 255.4.1.9 [Imperfect Self Defense Negates Intent To Act Unlawfully].)

    Instruction on imperfect self defense may be appropriate where there is evidence that the defendant honestly believed he or she was acting in self defense but there is a question as to whether that belief or the amount of force was objectively reasonable.  (See LaFave & Scott, Criminal Law, § 53 (1972).)

    "Analytically, self-defense has two aspects. One involves consideration of what the defendant believes and, in particular, the honesty, or sincerity, of that belief. The other focuses on its reasonableness. Both must be assessed in light of existing circumstances. Imperfect self-defense is a shadow form of self-defense. [Cunningham v. State (MD 1984) 473 A2d 40, 43.] It is distinguished from self-defense by whether the honestly held belief common to both is reasonable or unreasonable. A defendant who acts in imperfect self-defense has appraised the situation facing him or her in a faulty fashion while one who acts in self-defense has done so reasonably. Since both the subjective honestly-held belief and 'the evaluation of appearances' are 'matter[s] of mind,' [Perkins & Boyce, Criminal Law 857 (3rd Ed. 1982), at 860], the critical inquiry is which of them, if either, negates malice. Faulkner [(MD 1983) 458 A2d 81, 82] and Flannel [(CA 1979) 25 C3d 668 [160 CR 84]] make clear that it is the former... Imperfect self-defense, however, requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked." (Richmond v. State (MD 1993) 623 A2d 630, 642, references added to internal citations.)

    See also FORECITE National™ 255.4.1.9 [Imperfect Self Defense Negates Intent To Act Unlawfully].

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

NOTE: Inapplicability Of Imperfect Self Defense Under Modern Codes. In states with modern codes, the courts have declined to recognize imperfect self defense because the statutory definitions of manslaughter and self defense leave no room for it. (LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11, fn 6; State v. Thompson (MN 1996) 544 NW2d 8, 12 [no statutory imperfect self defense variety of manslaughter, so defendant not entitled to instruction on that defense].)

RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.8(I).

Robinson, Criminal Law Defenses (West, 1984) § 132 p. 99; § 184(b) pp. 399-403.

Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-9, Comment p. 8-61.

    A person, who kills another person in the actual but unreasonable belief in the necessity to defend [himself] [herself] [and] [or] [another] against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder.

[Source: FORECITE National™.]

    A person, who kills another person in the honest but unreasonable belief in the necessity to defend against imminent danger of death or great bodily injury is guilty of _____________ (e.g., voluntary manslaughter) but not murder. This is so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. 

    Unless you find beyond a reasonable doubt that the defendant did not kill in the honest but unreasonable belief in the necessity to defend against imminent danger of death or great bodily injury, you must vote to find the defendant guilty of ______________ (e.g., voluntary manslaughter) and not murder.

[See generally Hardnett v. Marshall (9th Cir. 1994) 25 F3d 875, 880; People v. Uriarte (CA 1990) 223 CA3d 192, 197 [272 CR 693]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.17 [Actual But Unreasonable Belief In Necessity To Defend–Manslaughter] (West, 6th Ed. 1996).]

    If a person honestly believed that he or she needed to defend against imminent peril such person does not harbor malice even if the belief in the need to defend was mistaken.  The prosecution contends that the defendant did not honestly believe in the need to defend.  In deciding whether the prosecution has met its burden of proving this contention beyond a reasonable doubt consider all the circumstances including the internal and external forces existing in the defendant's life.

[See generally Richmond v. State (MD 1993) 623 A2d 630, 642; Faulkner v. State (MD 1983) 458 A.2d 81 [54 Md.App. 113]; People v. Uriarte (CA 1990) 223 CA3d 192, 197 [272 CR 693]; People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142]; cf., Klis, "Reforms to Criminal Defense Instructions: New Patterned Jury Instructions Which Account For The Experience Of The Battered Woman Who Kills Her Battering Mate", 24 Golden Gate Univ. L. Rev. 131 (1994).]

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PRACTICE NOTE: People v. Barton (CA 1995) 12 C4th 186 [47 CR2d 569] disapproved People v. Wickersham (CA 1982) 32 C3d 307, 329 [185 CR 436], which held that "unreasonable self defense" is a "defense." "Unreasonable self defense" is not a true defense because it is a shorthand description of one form of voluntary manslaughter. In other words, it is a lesser included offense of the crime of murder. "Accordingly, when a defendant is charged with murder, the trial court's duty to instruct sua sponte, or on its own initiative, on unreasonable self defense is the same as its duty to instruct on any other lesser included offense: This duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self defense." (Barton, 12 C4th at 201.)

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PRACTICE NOTE: See Swann v. U.S. (DC 1994) 648 A2d 928, 933; Commonwealth v. Cyr (MA 1997) 679 NE2d 550, 556.

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    255.4.1.4    Negligent Imperfect Self Defense As Unlawful Act Involuntary Manslaughter [Reserved]

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    255.4.1.5    Imperfect Self Defense: Based Upon Doctrine Of Recklessness

PRACTICE NOTE: The offense is manslaughter if the prosecution proves that (1) the defendant was reckless in his belief that the deceased was about to use deadly force against him or (2) that the defendant was reckless in his belief that use of deadly force was necessary to defend himself. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 6-60 [Instruction 59--Self defense: Deadly Force: Imperfect Self defense--Lesser Included Offense] p. 6-81 thru 6-82 (Lexis, 1999).)

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PRACTICE NOTE: Even if imperfect self defense is not available, the threat involved may be sufficient to constitute adequate provocation in which case the defendant’s unreasonable belief in the need to defend may warrant an instruction on voluntary manslaughter based on provocation and heat of passion/hot blood. (See e.g., Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) [Defense of Self, Others, or Legal Rights – Deadly Force] p. 256 (South Carolina CLE, 1994).)

    See also FORECITE National™ 255.3 [Heat Of Passion/Hot Blood, Provocation].

    See also FORECITE National™ 255.4.4.2 [Right To Instruction On Both Heat Of Passion And Imperfect Self Defense].

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RATIONALE: The term "imperfect self defense" is a legal term of art which may not be readily understandable to a lay jury. The jury may better understand the concept if it is called "partial self defense" since this term more clearly describes the defense in ordinary language.

POINTS AND AUTHORITIES: It has been suggested that the term "partial" defense should be used instead of imperfect self defense. (See People v. Middleton (CA 1997) 52 CA4th 19, 30 [60 CR2d 366] [imperfect self defense is a partial defense]; State v. Watson (NC 1994) 449 SE2d 694, 702 ["This Court has recognized two categories of self-defense, perfect self-defense, which is a complete defense, and imperfect self-defense, which is a partial defense resulting in defendant's guilt of voluntary manslaughter"]; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.2 and comment [Homicide-First Degree Premeditated Murder, Second Degree Specific Intent Murder, And Voluntary Manslaughter (Imperfect Self-Defense)] (Micpel, 1999) ["The Committee used the term ‘partial’ defense, distinguishing it from ‘complete’ defense, rather than the terms perfect and imperfect defense, believing that they accurately characterize the distinction and are more understandable to jurors"].)

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

    The prosecution has the burden of proving that the defendant did not act in either complete self defense or partial self defense.

[See MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.2 [Homicide-First Degree Premeditated Murder, Second Degree Specific Intent Murder And Voluntary Manslaughter (Imperfect Self-Defense)] (Micpel, 1999).]

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PRACTICE NOTE: The defendant should have the right to present evidence in support of the defense theory of imperfect self defense in the form of expert testimony on the defendant's psychological profile in support of the defendant’s subjective belief that force was necessary to prevent serious bodily harm. (See Simmons v. State (MD 1988) 542 A2d 1258, 1260-61.)

    See also generally, FORECITE National™ 305.5.8 [Expert Testimony/Scientific Evidence]

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PRACTICE NOTE: In In re Christian S. (CA 1994) 7 C4th 768 [30 CR2d 33], the California Supreme Court held that the doctrine of imperfect self defense has not been eliminated by the California legislature. Thus, an actual fear of imminent harm, even if unreasonable, may negate both express and implied malice. (In re Christian S., 7 C4th at 780, and fn 4.) This holding was based upon the court's conclusion that the California statute defining malice requires that the defendant intend to act unlawfully. (In re Christian S., 7 C4th at 778.)

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    See FORECITE National™ 256.1 [Battered Person’s Syndrome].

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    See FORECITE National™ 250.8 [Cultural Background As Relevant To Defense Theories].

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RATIONALE: Without further definition the jury may not understand the correct legal meaning of the term "imminent danger."

POINTS AND AUTHORITIES: The sample instruction below is taken from People v. Aris (CA 1989) 215 CA3d 1178, 1187 [264 CR 167]; see also In re Christian S. (CA 1994) 7 C4th 768, 783 [30 CR2d 33].

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

    Imminent danger, as used in these instructions, means that the danger must have appeared to the defendant to have existed when the defendant __________ <insert act of force committed by defendant>. In other words, the danger must appear to the defendant as immediate and present and not prospective or in the future. In determining whether a situation presents an imminent danger, the defendant is entitled to consider all of the circumstances [, including the victim's prior assaults on and threats to the defendant].

[See People v. Aris (CA 1989) 215 CA3d 1178, 1187 [264 CR 167]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.17 [Actual But Unreasonable Belief In Necessity To Defend–Manslaughter] (West, 6th Ed. 1996).]

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RATIONALE: Without further definition of the term wrongful or unlawful conduct the jury will have no guidance as to what type of wrongful conduct the instruction is referring to.

POINTS AND AUTHORITIES: It has been held that a defendant may not rely on a theory of imperfect self defense when he engaged in "wrongful conduct" prior to his use of force. (In re Christian S. (CA 1994) 7 C4th 768, 773 fn 1 [30 CR2d 33].) In this context, "wrongful conduct" is "the initiation of a physical assault or the commission of a felony ..." (Ibid.)

    Hence, an instruction may be overly-broad, ambiguous and misleading if it fails to define "wrongful or unlawful conduct." Without defining the term "unlawful or wrongful conduct" the instruction fails to convey these principles. Not only does the instruction fail to state under what conditions the adversary's use of force is "legally justified," it is phrased so as to suggest that any unlawful or wrongful act by the defendant in fact legally justifies the use of force by the victim. Thus, the instruction gives the erroneous impression that imperfect self defense will not be applicable if the defendant has committed some sort of unlawful act or some sort of wrongful act. What type of unlawful or wrongful act is left to the unguided speculation of the jurors, who are not versed in the intricacies of the law of self defense or of imperfect self defense except through the inadequately-formulated instruction. (See People v. Prettyman (CA 1996) 14 C4th 248, 267 [58 CR2d 827].)

    As is readily apparent, the term "wrongful conduct" or "unlawful conduct" has a specialized meaning which would not be readily understood by jurors. Thus, a pattern instruction is insufficient since the term is not defined. (See generally FORECITE National™ 3.2.6 [Technical Terms Must Be Defined].)

    See also FORECITE National™ 83.3.7.6 [Conspiracy: Defense Theory That General Agreement To Engage In Unspecified, Unlawful Conduct Is Insufficient].

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

SAMPLE INSTRUCTION:

    As used in this paragraph, "unlawful or wrongful conduct" is defined as the willful initiation of a physical assault or the commission of a felony which presents the threat of physical harm to a third person.

[Source: FORECITE National™.]