JUSTIFICATION
USE OF FORCE UPON AN
INTRUDER
(N.J.S.A.
2C:3-4c) model jury charge
The indictment charges that the
defendant has committed the crime of .
The defendant contends that his/her use of
force (or deadly force) upon was justifiable under the circumstances for his/her
self-protection (or the protection of others).
Under certain conditions, the law
allows a person to use force upon another, and the use of such force does not
constitute a criminal offense. The law
exonerates a defendant who uses force (or deadly force) upon or toward an
intruder who is unlawfully in a dwelling when the defendant reasonably believes
that the force is immediately necessary for the purpose of protecting himself/herself or
other person(s) in the dwelling against the use of unlawful force by the
intruder on the present occasion.
Keep in mind that the State has the
burden to prove to you, beyond a reasonable doubt that the force used by the defendant
against another person was not justified.[1]
If the State fails to sustain this
burden, the defendant must be found not guilty of the crime(s) charged. Conversely, this defense should be rejected
if the State disproves, beyond a reasonable doubt, any of the elements or
conditions which constitute justification.
In this case (recite factual
contentions which raise the issue of justification).
For the force used by the defendant
against another to be justified, the following two conditions must exist:
1. The
other person (victim) was an intruder who was unlawfully in a dwelling.
An intruder is one who
is unlawfully in the dwelling--that is, he/she was not
licensed or privileged to be in the dwelling.
The term "dwelling" means any building or structure, though
movable or temporary, or a portion thereof, which is used as a person's home or
place of lodging.[2]
2. The
defendant reasonably believed that force (deadly force) was immediately
necessary for the purpose of protecting himself/herself or
other person(s) in the dwelling against the use of unlawful force by the
intruder on the present occasion.
A reasonable belief exists when a
defendant, to protect himself/herself or a
third person, was in his/her own
dwelling at the time of the offense or was privileged to be thereon, and the
encounter between the defendant and intruder was sudden and unexpected,
compelling the defendant to act instantly, and the defendant reasonably
believed that the intruder would inflict personal injury upon the defendant or
others in the dwelling, or the defendant demanded that the intruder disarm,
surrender or withdraw, and the intruder refused to do so.
I instruct you that a reasonable
belief is different than an honest belief.
What is reasonable is not measured by what a defendant found reasonable
but rather by what a jury finds reasonable.
Thus, the reasonableness of defendant's belief is based on an objective
standard--that is, by how an ordinary reasonable person with a detached
viewpoint would view it. A subjective
belief, based on the viewpoint of the defendant, is immaterial.
If the defendant did employ
protective force, he/she has the right to estimate the necessity of
using force without retreating, surrendering position, withdrawing or doing any
other act which he/she has no legal duty to do or abstaining from
any lawful action.
The State has a burden of proving,
beyond a reasonable doubt, that the force used by the defendant against another
person was not justified, that is, the State has the burden of proving, beyond
a reasonable doubt, that any of the elements or conditions of justification do
not exist.
If you find that the State has met
its burden of proof beyond a reasonable doubt, there is no justification and
you will consider whether the State has otherwise sustained its burden of
proving, beyond a reasonable doubt, each and every element of the offense of .
If the State has not met its burden
in this regard on the issue of justification, the defendant must be found not
guilty as to the charge of .[3]
[1] Although
the burden of disproving this defense is upon the State, there must be enough
evidence to support this charge--the record must provide a rational basis upon
which the jury could find that the defendant acted justifiably. See State v. Martinez, 229 N.J.
Super. 593 (App. Div. 1989).
[2] A
dwelling includes a "porch or other similar appurtenance." State v. Martinez, 229 N.J. Super.
583, 604 (App. Div. 1989).
[3] Note:
If the State has sustained its burden of proof, the jury may, if the
facts so warrant, deal with the issue of "imperfect
self-defense." See State v.
Bowens (Leon), 108 N.J. 622, 627-630 (1987).
