[The following was written by attorney Lisa J. Steele for nacdl.org. It is republished here with the author’s permission.]

A self-defense case is fundamentally different from most other criminal prosecutions. The essence of the defense is that the defendant is the victim of an attempted or completed violent felony such as assault, rape, or homicide which, but for the defendant’s lawful actions, would have resulted in the defendant’s death or in serious bodily harm. The complainant is, in fact, a violent aggressor who, but for the defendant’s lawful actions, would be the one standing trial. The defendant is the “good guy” and the victim is the “bad guy,” despite the prosecution’s efforts to portray the converse.

Many assumptions about trial tactics are inverted in a self-defense case. If the defendant presents some evidence on each of the elements of self-defense, then he or she is entitled to a jury instruction on the issue, which places the burden of proof squarely on the prosecutor to disprove self-defense beyond a reasonable doubt. If the prosecution fails to disprove self-defense, the client is acquitted. In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes.

This article is a starting point for attorneys representing clients in a self-defense case. It is focused on the common law of self-defense, using Massachusetts as its primary example, but the general principles are applicable in any state. It also introduces attorneys to some of the research regarding use of force conducted by police and self-defense instructors.

A self-defense case often requires counsel to understand a moderate amount of technical information about weapons and crime scene reconstruction. Such knowledge is needed in order to: (1) review and challenge the prosecutor’s experts, and (2) understand eyewitness memory issues and how the client, the deceased, and bystander witnesses were affected by the stress of the incident.

When Is It a Self-Defense Case?

“It is well settled that, if a man is attacked, he has the right to defend himself. If the attack is of such character that, and made under such circumstances, as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will effectively prevent the harm, he has the right to kill the assailant.”

– Com. v. Barnacle, 134 Mass. 215, 215 (1883).

In the vast majority of states, the basic elements of self-defense by means of deadly force (firearms and other weapons) include:

The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.

The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.

The danger was such that the client could only save himself or herself by the use of deadly force. Some states do not require the defendant to retreat, even if he or she can do so safely.1 Most states do not require the defendant to retreat if he is in his own home defending against someone who is unlawfully present. Law enforcement officers are not required to retreat.

The client had to use no more force than was necessary in all the circumstances of the case.

The standards for the use of non-deadly force (bare hands and feet) and force used in the defense of property are usually similar.

At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors in order to receive an appropriate jury instruction.

“When Isn’t It a Self-Defense Case?

Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use.

Thus, it is not a self-defense case if:

Counsel cannot present some minimal evidence on all of the self-defense factors.

The client denies responsibility for the crime or claims it was an accident. (This is especially important if the client has given the police a statement in which he or she tries to minimize the offense by agreeing with the interrogator that it was an accident or denies responsibility for the crime2.)

The client was the initial aggressor (the first to use force). If the client has unlawfully invaded the complaint’s home or is committing an armed robbery, the client is, in effect, an initial aggressor, and he must attempt to withdraw before he can use force to defend himself.

The client and the complainant were engaged in mutual combat upon agreed-to terms. If, however, the aggressor escalates an agreed-to fistfight by drawing a deadly weapon, then the mutual combat preclusion for self-defense may no longer apply, although the client is still required to retreat where possible if the state so requires.

The client continued to use force after the aggressor fell unconscious, surrendered, or began to flee. Self-defense has to cover every wound inflicted on the deceased.

The Client

The client does not have to be a clean-cut pillar of the community who carries a lawfully-owned firearm in order to qualify for self-defense, but it is helpful. Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively. This can be done through circumstantial evidence, but it is difficult.

Ideally, the client will also have some formal training in the use of deadly force which will allow the client’s teacher to testify about the client’s training in order to show that the client’s actions were subjectively reasonable. If the client has not had any formal training, counsel may still seek an expert to testify about use of force issues. However, the attorney may encounter difficulty showing that the expert’s opinion is relevant if it was not the basis for the client’s subjective decision. The attorney could offer expert testimony to show that the client’s actions were objectively reasonable.

Unfortunately, the most difficult self-defense cases come from clients involved in gang- or narcotics-related homicides and assaults. The client generally has a criminal record for violent offenses; illegally carries a weapon; has a history of problems with the complainant (making it difficult to sort out who was the aggressor); fled from police; discarded the weapon; and made incriminating statements when questioned. The attorney will be very reluctant to put the client on the stand, especially if the client’s record can otherwise be kept out of the case. Experts are often very reluctant to get involved in such cases.

A Theory of the Facts

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

– John Adams, 1773 (summation in the Boston Massacre case)

Once the attorney has settled on a self-defense strategy, he or she will need to think about what facts should be established and challenged in order to successfully defend the case. There will be some facts which the prosecution and police investigators believe are inconsistent with self-defense. Counsel will have to wrestle with these facts and be able to explain to the jury why they do not disqualify the client from self-defense.

[Click here for Part 2 of this series]