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FORECITE
National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11
- CHAPTER 253
253.4.2.1 Self Defense As An Inalienable
Right
[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: Self defense and
defense of others is considered "justifiable
homicide," an inalienable right at common law. (See U.S.
v. Jones (9th Cir. 1998) 139 F3d 748, 754 (WITHDRAWN;
REHEARING GTD) dissent ["self defense is about as basic a
moral and legal principle as there is"]; see also Cochran
v. State (MS 1973) 278 So2d 451, 452 ["jury
instructed that right of self defense is one of our
inalienable rights"]; People v. McManus (NY 1986)
496 NE2d 202, 205; State v. Hardy (OH 1978) 397 NE2d
773, 776-77 [discussing state constitutional right to defend
life]; but see Kalomidos v. Village of Morton Grove (IL
1982) 470 NE2d 266, 270 [right to use commonly owned arms for
self-defense is not, by virtue of Ninth Amendment, absolute
and inalienable right which cannot be impinged].) Sign
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RESEARCH
NOTES:
See generally,
FORECITE National™ 305.19.1 [Self
Defense].
RELATED
FEDERAL MODEL INSTRUCTIONS:
See generally,
FORECITE National™ 253.4.1.20 [Self
Defense: Federal Model Instructions].
FORECITE
National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11
- CHAPTER 253
253.4.2.4 Self Defense: Showing Of
Aggressive Character, Prior Threats, Etc., By Assailant
Not Necessary
[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 the defendant presents
specific evidence regarding the character or prior conduct of
the alleged victim, the jury may improperly assume that
rejection of this specific evidence also requires rejection of
the entire self defense theory.
POINTS AND
AUTHORITIES: See State
v. Newell (NH 1996) 679 A2d 1142, 1144-45 [it is not
necessary for the defendant to establish that the assailant
had an assaultive or aggressive character in order to rely on
self defense]. Sign
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See also FORECITE National™ 253.4.2.2
[Self Defense: Duty to Instruct].
See also FORECITE National™ 253.4.3.2
[Specification Of Prosecution's Burden].
FEDERALIZATION: To federalize this
request, click here. [Constitutional Macro 2.3;
4.1].
RESEARCH
NOTES:
See generally,
FORECITE National™ 305.19.1 [Self
Defense].
RELATED
FEDERAL MODEL INSTRUCTIONS:
See generally,
FORECITE National™ 253.4.1.20 [Self
Defense: Federal Model Instructions].
SAMPLE
INSTRUCTION:
The defendant has presented evidence
of ________________'s (name of alleged victim)
__________________________ (e.g., assaultive character,
prior threats, etc.).
However, it is not necessary for you
to find that ______________________ (name of alleged
victim) _________________________ (e.g., had an assaultive
character, made prior threats, etc.) for you to rely on
defendant's self defense theory.
If in light of all the evidence, the
prosecution has failed to disprove the self defense theory
beyond a reasonable doubt, you must give the defendant the
benefit of that doubt and find [him] [her] not guilty.
[Source: FORECITE National™.]
FORECITE
National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright
& Publication Information
VOLUME 11
- CHAPTER 250
250.2.2 Defendant Need Not Testify To Obtain
Instruction On Defense Theory
[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:
So long as the record contains
any evidence justifying jury consideration of a defense
theory, the defendant's testimony should not be necessary for
instruction on that theory.
POINTS AND
AUTHORITIES: Even if
the defendant did not testify, the trial court has a duty to
instruct on defenses raised by the evidence. (See People v.
DeLeon (CA 1992) 10 CA4th 815, 824 [12 CR2d 825].) For
example, "[s]ubstantial evidence of a defendant's state
of mind, including an 'honest but unreasonable belief in the
necessity to defend against imminent peril to life,' may be
present without the defendant's testimony. [Citations.]
[Original emphasis.]" (DeLeon, 10 C4th at 824.)
Furthermore, "[t]he element of intent is rarely
susceptible of direct proof and must usually be inferred from
all the facts and circumstances disclosed by the
evidence." (People v. Falck (1997) 52 CA4th 287,
299 [60 CR2d 624]; see also People v. Anderson (CA
1983) 144 CA3d 55, 64 [192 CR 409] [Mayberry defense of
good-faith belief in consent].) For this reason,
"circumstantial evidence alone" has been held to be
sufficient to require instruction on self defense. (See Williams
v. State (OK 1996) 915 P2d 371, 375-76; Reich-Bacot
(TX 1996) 914 SW2d 666, 668 [defendant need not testify to
raise self defense]; State v. Graham (NE 1990) 450 NW2d
673, 676 [improper to refuse self-defense instruction because
judge apparently believed that a defendant must testify in
order to establish his or her good-faith belief that force was
necessary]; People v. Hoskins (MI 1978) 267 NW2d 417,
419 ["A defendant need not take the stand and testify in
order to merit an instruction on self-defense].)
"Undoubtedly, the likelihood of a defendant introducing
sufficient evidence to warrant a self-defense instruction is
enhanced where the defendant himself testifies. But, the
applicability of such an instruction is not precluded without
a defendant's testimony." (Bowler v. U.S. (DC App.
1984) 480 A2d 678, 682; see also Smith v. State (TX
1984) 676 SW2d 584, 586-87.) Sign
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See FORECITE National™ 250.1 [Grounds
For Instruction On Defense Theory].
See also FORECITE National™ 25.12.5
[Proof Of Intent: Circumstantial Evidence Sufficient].
FEDERALIZATION: To federalize this
request, click here. [Constitutional Macro 4.1].
SAMPLE
INSTRUCTION # 1:
The jury may infer a person's intent or state of mind from
the surrounding circumstances. Therefore, it is not
necessary for the defendant to testify to raise [self
defense] [heat of passion] [____________].
Regardless of whether or not the defendant testifies, if
after consideration of all the circumstances, the
prosecution has not proven beyond a reasonable doubt that
the defendant did not act in [self defense] [heat of
passion based on adequate provocation] the jury must find
the defendant not guilty.
[Source: FORECITE National™.]
SAMPLE
INSTRUCTION # 2:
Intent may be proven by circumstantial evidence. Indeed,
it can rarely be established by any other means. We simply
cannot look into the head or mind of another person. But
you may infer the defendant's intent from all of the
surrounding circumstances.
[See
generally People v. Falck (1997) 52 CA4th 287,
299 [60 CR2d 624]; cf. NORTH DAKOTA PATTERN JURY
INSTRUCTIONS, NDJI-Criminal 5.38 [Proof Of Intent]
(State Bar Association of North Dakota, 1999).]
SAMPLE
INSTRUCTION # 3:
You may determine a
person's mental state based on the statements and/or
conduct of that person which indicate his or her state of
mind. Thus, in deciding the question of
[____________] (insert defense theory e.g.,
"whether the defendant honestly and reasonably
believed he was acting in self defense"), consider
the defendant's statements and/or conduct in light of all
the evidence. You are the sole judges of the facts.
You must not find the defendant guilty unless the
prosecution has proven beyond a reasonable doubt that the
defendant [intended to _____________] had the mental state
of [________________] at the time of the alleged crime.
[Source: FORECITE National™.]
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