SEQ CHAPTER \h \r 1CR07-121 06/18/03

SELF-DEFENSE, AND DEFENSE OF ANOTHER (USE OF DEADLY FORCE)

Introduction

Evidence has been introduced bearing on the issues of lawful self-defense, and lawful defense of another, as justifications for the killing of (victim)_______________.  The State bears the burden of proving that the killing was unlawful.  A killing committed in self-defense, or in defense of another, is justified by these defenses, and it is not a crime.  Here the State must have proven beyond a reasonable doubt that (Def)_______________ did not act in self-defense or in defense of another.  (Def)_______________ has no burden of proof on these issues.

Self-Defense

A person has the right to defend [himself] [herself] when [he] [she] is attacked, or when [he] [she] reasonably believes [he] [she] is in imminent danger of being killed or suffering great bodily harm.  A person in that situation has the right to use only such force as is reasonably necessary to repel the attack or the perceived imminent danger.

A killing is justified by self-defense if:

(1) (Def)_______________ reasonably believed that [he] [she] was in imminent danger of being killed or of suffering great bodily harm, and

(2) [his] [her] use of deadly force was reasonably necessary to repel the perceived threat.

The right of self-defense does not require that a person actually be assaulted, but (Def)_______________ must have believed that [he] [she] was in imminent danger, and [his] [her] belief must have been reasonable under the circumstances.  (Def)_______________’s expectation of harm must have been based upon fact and not on some imaginary fear.

Self-defense requires that (Def)_______________ must have had a reasonable fear of imminent harm.  In deciding this issue, you may consider what (Def)_______________ knew about (victim)_______________ at the time.  You may consider any previous interactions, including any aggressive or hostile conduct by (victim)_______________, and any other evidence you consider relevant, including who started the confrontation.

When assessing the reasonableness of (Def)_______________’s fear, you may consider the individual characteristics of (Def)_______________ and (victim)_______________, such as their respective size, gender, age, physical condition, strength, stamina, courage, and assertiveness.

Self-defense permits only the amount of force that is reasonably necessary to repel the perceived harm.  A person may use the amount of force that reasonably appears to be necessary under all of the circumstances known to [him] [her] at the time.  In this case you must decide whether (Def)_______________ reasonably believed it was necessary to use the amount of force that [he] [she] did use.  When a person has reasonable grounds to believe that an assault is imminent, [he] [she] need not wait until it actually occurs before [he] [she] may resort to self-defense.

Defense of Another

(Def)_______________ also claims that [he] [she] acted in defense of (third person)_______________.  A person may lawfully use deadly force in the just and necessary defense of the life of [his] [her] [wife] [husband] [parent] [child] [brother] [sister] [master] [mistress] [servant] [guardian] [ward].  If the necessary relationship exists, (Def)_______________’s actions in defense of (third person)_______________ were justified, if (third person)_______________ was in danger of being killed, or of receiving great bodily harm, or if (third person)_______________ reasonably appeared to be in imminent danger of death or great bodily harm.

Here the killing was justified by defense of another if:

(1) (Third person)_______________ was (Def)_______________’s [wife] [husband] [parent] [child] [brother] [sister] [master] [mistress] [servant] [guardian] [ward]; and

(2) (Def)_______________ reasonably believed that [his] [her] use of force was necessary for the defense of (third person)_______________; and

(3) Under the circumstances, as they were reasonably perceived by (Def)_______________, (third person)_______________ would have had the right to use deadly force to protect [himself] [herself].

As with the issue of self-defense, the State must have proven beyond a reasonable doubt that (Def)_______________ was not justified to act as he did in the defense of (third person)_______________.  (Def)_______________ bears no burden of proof on these issues.