IN PROTECTION OF OTHERS
(N.J.S.A. 2C:3‑5) model jury charge
The defendant contends he/she should
be found not guilty because he/she acted
in defense of a third person. Our
statute N.J.S.A. 2C:3‑5 insofar as pertinent to this matter provides:
... the use of force
upon or toward that person of another is justifiable to protect a third person
when:
(1) The actor would be justified ... in using
such force to protect himself against the injury he believes to be threatened
to the person whom he seeks to protect and
(2)
Under the circumstances as the actor
reasonably believes them to be, the person whom he seeks to protect would be
justified in using such protective force; and
(3)
The actor reasonably believes that
his intervention is necessary for the protection of such other person.
You must first determine whether the
force used by (defendant) to protect (name), the third person, would have been
justified if (defendant) had used such force to protect himself/herself under the guidelines of the law pertaining
to self‑defense that I have just given you.
Second, you must determine whether
(defendant) reasonably believed that person whom he/she sought
to protect would have been justified in using such force in self‑defense. In applying this test you are instructed to
disregard any finding that the person in whose behalf (defendant) intervened
was in fact the aggressor or that no defensive measures on his/her behalf
were actually necessary, but you may consider everything defendant knew when he/she acted,
including these same factors if you find that he/she knew
them.
Finally, you must determine whether
(defendant) reasonably believed these actions were necessary to protect that
person.
In
making these determinations, keep in mind the following:
When using deadly force to protect a third
person, the defendant is not obligated to retreat or to surrender possession of
a thing to one claiming a right thereto or to comply with any demands being
made of him/her unless
he/she knows
that by doing so it would secure the complete safety of the third person.
But, if the third person, whom the
actor is seeking to protect is under a duty to retreat, then the defendant is
obligated to try to cause (him/her) to do so before using force in (his/her)
protection if the defendant knows that he/she can obtain complete safety in that way.
Finally,
neither the defendant nor the person whom he/she seeks
to protect is required to retreat when in the third person's dwelling to any
greater extent than in his/her own.
Always remember -- the State has the
burden of disproving the defense of protection of a third person beyond a
reasonable doubt. Unless the State has
convinced you beyond a reasonable doubt that the defendant was not justified,
then you must find the defendant not guilty.
If, on the other hand, you are convinced beyond a reasonable doubt that
the defendant did not have the right to resort to force or deadly force to
protect a third person, then this particular defense fails.
