JUSTIFICATION ‑ SELF DEFENSE
In Self Protection
(N.J.S.A. 2C:3‑4) model jury charge
The indictment charges that the
defendant has committed the crime of (i.e., aggravated assault or homicide).
The defendant contends that if the
State proves he/she used or threatened to use force upon
the other person(s), that such force was justifiably used for his/her self protection.
The statute reads:
"The use of force upon or toward another person is
justifiable when the actor reasonably believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion."
In other words, self defense is the
right of a person to defend against any unlawful force. Self defense is also
the right of a person to defend against seriously threatened unlawful force
that is actually pending or reasonably anticipated. When a person is in
imminent danger of bodily harm, the person has the right to use force or even
deadly force when that force is necessary to prevent the use
against him/her of unlawful force. The force used by the defendant must not be
significantly greater than and must be proportionate to the unlawful force
threatened or used against the defendant.
Unlawful force is defined as force
used against a person without the person's consent in such a way that the
action would be a civil wrong or a criminal offense.
If the force used by the defendant
was not immediately necessary for the defendant's protection or if the force
used by the defendant was disproportionate in its intensity, then the use of
such force by the defendant was not justified and the self defense claim fails.[1]
There are different levels of force
that a person may use in his/her own defense to prevent unlawful
harm.
The defendant can only use that
amount or degree of force that he/she reasonably believes is necessary to
protect himself/herself against harm. If the defendant is
attempting to protect himself/herself against exposure to death or the
substantial danger of serious bodily harm, he/she may resort to the use of deadly
force. Otherwise, he/she may only resort to non‑deadly force.
Deadly Force
The
use of deadly force may be justified only to defend against force or the threat
of force of nearly equal severity and is not justifiable unless the defendant
reasonably believes that such force is necessary to protect himself/herself against death or serious bodily
harm. Deadly force is defined as force
that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk
of causing death or serious bodily harm. By serious bodily harm we mean an
injury that creates a substantial risk of death or which causes serious
permanent disfigurement or which causes a protracted loss or impairment of the
function of any bodily member or organ.[2] For
example, if one were to purposely fire a firearm in the direction of another
person, that would be an example of deadly force. A mere threat with a firearm,
however, intended only to make the victim of the threat believe that the
defendant will use the firearm if necessary is not an example of deadly force.
One cannot respond with deadly force
to a threat of or even an actual minor attack. For example, a slap or an
imminent threat of being pushed in a crowd would not ordinarily justify the use
of deadly force to defend against such unlawful conduct. Therefore, you must
first determine whether the defendant used deadly force. If you find that the
defendant did so, then you must determine if the defendant reasonably believes he/she had to use deadly force to defend
against the unlawful conduct of another.
A reasonable belief is one which
would be held by a person of ordinary prudence and intelligence situated as
this defendant was. Self defense exonerates a person who uses force in the
reasonable belief that such action was necessary to prevent his or her death or
serious injury, even though his/her belief was later proven
mistaken. Accordingly, the law requires
only a reasonable, not necessarily a correct, judgment.[3]
Even if you find that the use of
deadly force was reasonable, there are limitations on the use of deadly force.
If you find that the defendant, with the purpose of causing death or serious
bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the
defense is not available to him/her.
If you find that the defendant knew
that he/she could avoid the necessity of using
deadly force by retreating, provided that the defendant knew he/she could do so with complete safety,
then the defense is not available to him/her.[4] [CHARGE
WHERE APPLICABLE: A dwelling includes a porch or other similar structure.][5]
In your inquiry as to whether a
defendant who resorted to deadly force knew that an opportunity to retreat with
complete safety was available, the total circumstances including the attendant
excitement accompanying the situation must be considered.
Non‑Deadly
Force
A person may also use non‑deadly
force in his/her own defense. If you find that this
defendant did use non‑deadly force to defend himself/herself, then you must determine whether
that force was justified.
The same reasonable belief standard
that I explained to you when discussing deadly force applies.
A person may use non‑deadly force to
protect himself/herself if the following conditions exist:
1. The person reasonably believes he/she must use force and
2. The person reasonably believes that the
use of force was immediately necessary
and
3. The person reasonably believes he/she is using force to defend himself/herself against unlawful force, and
4. The person reasonably believes that the
level of the intensity of the force he/she uses is proportionate to the
unlawful force he/she is attempting to defend against.
Remember,
only if you conclude that in using force or deadly force the defendant
reasonably believed he/she was defending against unlawful force
is the defense available to him/her.
Burden
of Proof
The State
has the burden to prove to you beyond a reasonable doubt that the defense of
self defense is untrue. This defense only applies if all the conditions or
elements previously described exist. The defense must be rejected if the State
disproves any of the conditions beyond a reasonable doubt.
The same
theory applies to the issue of retreat. Remember that the obligation of the
defendant to retreat only arises if you find that the defendant resorts to the
use of deadly force. If the defendant
does not resort to the use of deadly force, one who is unlawfully attacked may
hold his/her position and not retreat
whether the attack upon him/her is by deadly force or some lesser force.
The burden
of proof is upon the State to prove beyond a reasonable doubt that the
defendant knew he/she could have retreated with complete
safety. If the State carries its burden
then you must disallow the defense. If
the State does not satisfy this burden and you do have a reasonable doubt, then
it must be resolved in favor of the defendant and you must allow the claim of
self defense and acquit the defendant.
[1] In State v. Bowens, 108 N.J. 622, 626
(1987), the Court held that the Code of Criminal Justice "does not provide
an independent category of justification, excuse or mitigation under the
concept of imperfect self-defense."
Therefore courts are not required, as was the case prior to the adoption
of the Code, to instruct that "imperfect self-defense would serve to
reduce murder to an unspecified degree of manslaughter." Id. at
637. However, Bowens also held
that "evidence that will sustain
the defense at common law is frequently relevant to the presence or absence of
the essential elements of Code offenses." Id. at 626. In
almost all cases, if such evidence is adduced at trial, the trial court should
charge purposeful murder and the lesser-included offense of aggravated
manslaughter, reckless manslaughter, and passion/provocation manslaughter. State
v. Coyle, 119 N.J.
194, 228 (1990). If there is a rational
basis for the jury to find that defendant acted in the honest but unreasonable
belief in the necessity to resort to force in self-defense, it could conclude
that he/she acted recklessly rather than purposely or knowingly. State v. Pridgen, 245 N.J. Super. 239, 244 (App. Div.
1991). In murder prosecutions, such
evidence should cause the court to instruct the jury on the lesser included
offenses of aggravated and/or reckless manslaughter. Similarly, if there is a rational basis for
a jury to find that defendant reasonably
believed in the necessity to use force, and honestly but unreasonably believed
that he/she needed to resort to deadly force to repel the danger that he/she
faced, it could conclude that he/she acted in the heat of passion resulting
from a reasonable provocation, which would justify submission of
passion/provocation manslaughter as a lesser included offense of murder. State v. Powell, 84 N.J. 305, 312 n. 7 and 313
(1980); Pridgen, 245 N.J. Super. at 244.
[2] If
appropriate, charge the following: "Serious bodily injury may also mean
bodily harm that results from aggravated sexual assault or sexual
assault."
[3] In State v. Rodriguez, 195 N.J. 165,
171-72 (2008), the Supreme Court held that a valid claim of self-defense “would
entitle [a defendant] to an exoneration of criminal liability” on all
charges relating to his or her alleged aggressor, including aggravated or
reckless manslaughter or assault, because a “person who kills in the honest and
reasonable belief that the protection of his own life requires the use of
deadly force does not kill recklessly.”
However, “it is another question if the use of force to protect one’s
self recklessly endangers innocent third parties….” Id.; N.J.S.A. 2C:3-9c. The Court did not expand upon the latter
concept because the third party scenario was not implicated in Rodriguez.
[4] An
exception to the rule of retreat, however, is that a person need not retreat
from his or her own dwelling, including the porch, unless he or she was the
initial aggressor. N.J.S.A. 2C:3-4b(2)(b)(i).
[5] State
v. Martinez, 229 N.J. Super. 583, 604 (App. Div. 1989).