FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 253

    253.4.9.1 Prior Acts Or Threats: Right To Instruction
    253.4.9.2 Self Defense: Prior Acts Of Violence Or Character Of Alleged Victim As Relevant To Reasonableness Of Defendant's Response
    253.4.9.3 Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault
    253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim
    253.4.9.5 Application Of Prior/Antecedent Threat Doctrine To Recent Threats
    253.4.9.6 Self Defense: Consideration Of Prior Relationship Between Defendant And Victim
    253.4.9.7 Self Defense: Knowledge Of Prior Acts of Violence Against Others
    253.4.9.8 Prior/Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
    253.4.9.9 Failure To Give Prior Threat Instruction As Reversible Error
    253.4.9.10 Failure To Request Prior/Antecedent Threat Instruction As Ineffective Assistance Of Counsel
    253.4.9.11 Instruction On Prior Threats By Gang Members

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 11 - CHAPTER 253

[NOTE: Other than copyright information, none of the internal hyperlinks in this document will work as this is only a sample for demonstration purposes only]

RATIONALE: When a person has received prior threats from another person the entire calculus of their relationship is changed. For example, an act which ordinarily might not justify self defense (e.g., reaching into a pocket) could trigger lawful self defense when considered in light of prior threats. Hence, the impact of such threats can be an essential defense theory upon which instruction may be appropriate.

POINTS AND AUTHORITIES: One who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats. (See e.g., Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395] [prior threats relevant to justify "promptness to repel attack ..."]; People v. Moore (CA 1954) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (CA 1992) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (CA 1978) 84 CA3d 294, 302-04 [148 CR 430]; People v. Taylor (MI 1992) 489 NW2d 99, 101 [antecedent threat admissible to show that defendant had access to weapon]; Fielder v. State (TX 1988) 756 SW2d 309, 319-20 [threats made by the alleged victim against the defendant either at the time of the confrontation or antecedent threats made earlier, may be considered as circumstances in deciding the reasonableness of the defendant’s belief in the need to use self defense]; Lewis v. Commonwealth (VA 1884) 78 Va. 732, 734 ["The court instructs the jury that the threats made by the deceased prior to the day of killing -- as well as those made to the prisoner in person [and] those made to others and communicated to the prisoner -- are to be considered by them in the determination of the question as to whether the accused had, at the time of the killing, a reasonable ground to apprehend that the deceased intended to do him [the prisoner] serious bodily harm"]; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 10.2 [Prior Difficulties] p. 275 ["...[P]rior difficulties between the defendant and the alleged aggressor or aggressors may be relevant to whether a threat existed, to whether defendant had reason to believe a threat existed, and to how serious the threat was"] (South Carolina CLE, 1994).)

    Prior acts of violence may be similarly relevant. (See Hunter v. State (AL 1975) 325 So2d 921, 925; State v. Peoples (MO 1981) 621 SW2d 324, 328-29 [where evidence of self-defense shows antecedent threat or violence by victim upon defendant, court must instruct jury, whether requested or not, on how to consider evidence, as such acts may bear on self-defense]; see also FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character].)  Sign Up Today for access to Juryinstruction.com! Click Here!

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

USE NOTES: Mandatory Consideration. Even though many of these sample instructions inform the jury that it "may" or "should" consider the evidence, it may be argued that consideration of the evidence should be mandatory. (See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].)

Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault.  (See FORECITE National™ 253.4.9.3 [Self Defense: Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault].)

Antecedent Threats By Associates Of The Victims. (See FORECITE National™ 253.4.9.4 Prior/Antecedent Threats By Associates Of The Victim].)

Application Of Antecedent Threat Doctrine To Recent Threats. (See FORECITE National™ 253.4.9.5 [Application Of Prior/Antecedent Threat Doctrine To Recent Threats].)

Annotation, Admissibility Of Threats To Defendant Made By Third Parties To Support Claim Of Self Defense In Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449.

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense:  Federal Model Instructions].

    One who has received threats against [his] [her] life or person made by another is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats.

    If in this case you believe that __________ [insert name of deceased or assault victim] made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or assault victim], you are to consider such facts in determining whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

[Source: FORECITE National™.]

    Evidence has been presented of alleged past threats against the defendant by ________________ (insert name of deceased).

    When evidence of past threats are known by the defendant at the time of the alleged crime, consider such evidence in determining who was the aggressor.  Also, consider such evidence in determining the reasonableness of the defendant's fear of danger to [his] [her] safety.

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(d) [Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of the Deceased-Prior Threats By The Deceased Against The Defendant Known By The Defendant] p. 838 (Lexis, 2nd ed. 1988).]

    Evidence has been presented of alleged past threats against the defendant by ________________ (insert name of deceased).

    Where there is evidence of past threats against the defendant by the deceased that were not known by the defendant at the time of the alleged crime, consider such evidence in deciding who was the aggressor.

[See FORECITE National™ 253.4.8.2 [Prior Violent Acts Or Assaultive Character Of Victim To Show He Or She Acted In Conformity With Character]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(e) [Self-Defense-Prior Acts, Reputation (Or Opinion) And Threats Of The Deceased-Prior Acts Of Violence By Th Deceased Known By The Defendant] p. 838-39 (Lexis, 2nd ed. 1988).]

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 10.2 [Prior Difficulties] p. 275 (South Carolina CLE, 1994).]

    Members of the Jury, I charge you that words, threats and menaces may, in some circumstances, be sufficient to arouse in the mind of the person to whom they are directed, a reasonable fear that his life is in immediate danger, or that a felony is about to be committed on his person.

[Source: Facison v. State (GA 1979) 263 SE2d 523, 524; see also Moore v. State (GA 1972) 187 SE2d 277, 278.]

    Consider evidence of threats of violence by [_____________ (name of alleged victim)] [the alleged victim] against the defendant, if there is evidence that the defendant was aware of such threats. (name of alleged victim)] [the alleged victim] against the defendant, if there is evidence that the defendant was aware of such threats.

[Cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 4-1 [Self-Defense] ¶ 6 (Lexis, 2nd ed. 1999).]

    Evidence has been presented of alleged past acts of violence by _____________ (insert name of deceased) which were known by the defendant.

    Where there is evidence of past acts of violence by the deceased that were known by the defendant, consider such evidence in deciding who was the aggressor.  Also, consider such evidence in deciding the reasonableness of the defendant's fear of danger to his safety.

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.16(a) [Self-Defense–Prior Acts, Reputation (Or Opinion) And Threats Of The Deceased-Prior Acts Of Violence By The Deceased Known By The Defendant] pp. 836-37 (Lexis, 2nd ed. 1988).]

    Evidence has been introduced of acts of violence not involving the defendant committed by ________________ (name of victim) and that the defendant was aware of these acts. Consider this evidence in deciding whether the defendant reasonably believed [he] [she] was in imminent danger of harm from ____________ (name of victim). Do not consider this evidence in deciding who was the initial aggressor in the encounter or for any other reason.

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395]; cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use Of Force In Self-Defense] ¶ 4 (Missouri Supreme Court Publications, 3rd ed. 1987); see also State v. Bashe (MO 1983) 657 SW2d 321, 325-26 [instruction is mandated when there is testimony as to a specific act of violence.]

* But see FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].

[See Allison v. U.S. (1895) 160 US 203, 215 [16 SCt 252; 40 LEd2d 395];  cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or Decedant] ¶ 1(ICLE, 2nd ed. 1999).]

    Consider any evidence that ______________ (name of alleged victim) had a reputation for cruelty or violence when you decide whether it was likely ______________ (name of alleged victim) threatened the defendant, and whether the defendant honestly and reasonably feared for [his/her] safety.

[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.23 [Past Violence By Complainant Or Decedant] ¶ 2 (ICLE, 2nd ed. 1999).]

    Evidence has been introduced that ________________ (name of alleged victim) had a reputation for ______________ and that the defendant was aware of that reputation. Consider this evidence in deciding whether the defendant reasonably believed [he] [she] was in imminent danger of harm from ________________ (name of alleged victim).  Also, consider this evidence in deciding who was the initial aggressor.

[Cf. MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 3.06.06, Part C [Justification: Use Of Force In Self-Defense] ¶ 2 (Missouri Supreme Court Publications, 3rd ed. 1987).]

FORCITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 253

[NOTE: Other than copyright information, none of the internal hyperlinks in this document will work as this is only a sample for demonstration purposes only]

PRACTICE NOTE: In People v. Jelks UNPUBLISHED (A053527) and People v. Tafoya UNPUBLISHED (3/30/95, B080123), the Court of Appeal reversed for failure to give FORECITE National™'s antecedent threat instruction. (See also People v. Parish UNPUBLISHED (7/18/95, A064582) [reversing for failure to give requested antecedent threat instruction and holding that the other instructions did not adequately cover the relevance of the antecedent threats to the claim of self defense].) 

    People v. Pena (CA 1984) 151 CA3d 462, 475 [198 CR 819] held that the erroneous failure to instruct on antecedent threats is "presumed prejudicial."   Sign Up Today for access to Juryinstruction.com! Click Here!

OPINIONS AND BRIEFING AVAILABLE:  To read the Jelks and Tafoya opinions, click here. [Opinion Bank # O-119a and Opinion Bank # O-119b].  To read the opinion and brief in People v. Parish UNPUBLISHED, click here. [Brief Bank # B-691 and Opinion Bank # O-206].  For additional briefing regarding the prejudicial impact of the failure to instruct on antecedent threats, click here. [Brief Bank # B-723].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].