Defense to Assault - Self-Defense

JUSTIFICATION ‑ SELF DEFENSE  (N.J.S.A. 2C:3‑4)          In a Jury Trial, the Judge will give an outline of the law and how to determine the facts. These are called Jury charges. We find it is a good idea to provide clients with an outline of the law at the beginning of their case and prior to a trial. The same law applies in Municipal Court trials.                 The defendant contends that if the State proves he/she used or threatened to use force upon the other person(s), that such force was justifiably used for his/her self-protection.          The self-defense statute reads: "The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."          In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him/her of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.          Unlawful force is defined as force used against a person without the person's consent in such a way that the action would be a civil wrong or a criminal offense.          If the force used by the defendant was not immediately necessary for the defendant's protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self defense claim fails.[1]          There are different levels of force that a person may use in his/her own defense to prevent unlawful harm.          The defendant can only use that amount or degree of force that he/she reasonably believes is necessary to protect himself/herself against harm. If the defendant is attempting to protect himself/herself against exposure to death or the substantial danger of serious bodily harm, he/she may resort to the use of deadly force.  Otherwise, he/she may only resort to non‑deadly force. Non‑Deadly Force          A person may also use non‑deadly force in his/her own defense. If you find that this defendant did use non‑deadly force to defend himself/herself, then you must determine whether that force was justified.          A person may use non‑deadly force to protect himself/herself if the following conditions exist:                   1.      The person reasonably believes he/she must use force and                   2.      The person reasonably believes that the use of force was immediately necessary and                   3.      The person reasonably believes he/she is using force to defend himself/herself against unlawful force, and                   4.      The person reasonably believes that the level of the intensity of the force he/she uses is proportionate to the unlawful force he/she is attempting to defend against.          Remember, only if you conclude that in using force or deadly force the defendant reasonably believed he/she was defending against unlawful force is the defense available to him/her. Burden of Proof          The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue. This defense only applies if all the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.          The same theory applies to the issue of retreat. Remember that the obligation of the defendant to retreat only arises if you find that the defendant resorts to the use of deadly force.  If the defendant does not resort to the use of deadly force, one who is unlawfully attacked may hold his/her position and not retreat whether the attack upon him/her is by deadly force or some lesser force.          The burden of proof is upon the State to prove beyond a reasonable doubt that the defendant knew he/she could have retreated with complete safety.  If the State carries its burden then you must disallow the defense.  If the State does not satisfy this burden and you do have a reasonable doubt, then it must be resolved in favor of the defendant and you must allow the claim of self defense and acquit the defendant.          Simple Assault in a Fight by Mutual Consent          Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.          The defense attorney must serve a NOTICE OF SPECIFIC CRIMINAL CODE DEFENSES PURSUANT TO Rule 3:12A -       Ignorance or mistake pursuant to 2C:2-4 -       Renunciation terminating complicity pursuant to 2C:2-6 e 3 -       Intoxication pursuant to 2C:2-8 -       Entrapment pursuant to 2C:2-12b -       Renunciation of criminal purpose pursuant to 2C:5-1d -       Renunciation of conspiracy pursuant to 2C:5-2e -       De minimis infraction pursuant to  2C:2-11 -       Justification pursuant to 2C:3-1 -       Necessity and other justifications pursuant to 2C:3-2 -       Self-Defense pursuant to 2C:3-4 -       Force by Persons with Special Responsibility pursuant to 2C:3-8 -       Lack of Jurisdiction pursuant to R 3:10-2 -       Insufficiency of Indictment pursuant to R 3:10-2 -       Unconstitutional statute pursuant to R 3:10-3 -       Alibi pursuant to 3:11-1   [I was not there, it was not me- bar fight] Other arguments are mitigating factors to be decided by Judge at sentencing, such as Duress and provocation.        Failure to give Miranda warnings is not a defense. However, statements or confessions made after arrest could be inadmissible if proper Miranda not read. This is the law on duress: DURESS[2] (N.J.S.A. 2C:2-9) The defendant contends he/she is not guilty because at the time of the offense he/she acted under duress.  In other words, he/she was coerced to commit the offense due to the use of, or a threat to use, unlawful force against (him/her) or another person.          Our law provides in pertinent part:                   (I)t is an affirmative defense that an actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.          Before conduct, which would otherwise be criminal, can be excused on the ground that such conduct was a direct result of force or threats of force upon the defendant or another, the evidence must indicate that the following conditions existed at the time: (1)     There was use of, or threatened use of, unlawful force against the person of the defendant or another; and (2)  The force, or threatened force, would be of such a type that a person of reasonable firmness in a similar situation would have been unable to resist.          This defense of duress is unavailable to the defendant if you find that he/she recklessly placed (himself/herself) in a situation in which it was probable that he/she would be subjected to duress.[3]          A person acts recklessly with respect to a material element of an offense when he/she consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his/her conduct.  The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him/her, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.          "Unlawful force" means force including confinement, which is employed without the consent of the person against whom it is directed.[4]          In determining whether the defense of duress has been established, you should consider:                   (1)     The factor of immediacy (that is, the force or threats posed a danger of present, imminent and impending harm to the defendant or to another) as well as the gravity of the harm or threatened harm;                   (2)     The seriousness of the crime committed;                   (3)     The identity of the person endangered (In other words, was it the defendant or another person who was allegedly endangered?);                   (4)     The possibilities for escape or resistance and the opportunity for seeking official assistance, if realistic.[5]  Remember, the standard utilized here is that which a person of reasonable firmness in the defendant's situation would have been unable to resist. The State has the burden to prove beyond a reasonable doubt each element of the offense. The State also has the burden to disprove, beyond a reasonable doubt, the defense of duress.          If you find the State has proven beyond a reasonable doubt each element of the offense charged and that the State has disproved beyond a reasonable doubt the defense of duress, you must find the defendant guilty.          If, however, you determine that the State has failed to prove beyond a reasonable doubt one or more of the elements of the offense or has failed to disprove the defense of duress, you must find the defendant not guilty. Footnotes: [1]         In State v. Bowens, 108 N.J. 622, 626 (1987), the Court held that the Code of Criminal Justice "does not provide an independent category of justification, excuse or mitigation under the concept of imperfect self-defense."  Therefore courts are not required, as was the case prior to the adoption of the Code, to instruct that "imperfect self-defense would serve to reduce murder to an unspecified degree of manslaughter." Id. at 637.  However, Bowens also held that  "evidence that will sustain the defense at common law is frequently relevant to the presence or absence of the essential elements of Code offenses." Id. at 626.   In almost all cases, if such evidence is adduced at trial, the trial court should charge purposeful murder and the lesser-included offense of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter.  State v. Coyle, 119 N.J. 194, 228 (1990).  If there is a rational basis for the jury to find that defendant acted in the honest but unreasonable belief in the necessity to resort to force in self-defense, it could conclude that he/she acted recklessly rather than purposely or knowingly.  State v. Pridgen, 245 N.J. Super. 239, 244 (App. Div. 1991).  In murder prosecutions, such evidence should cause the court to instruct the jury on the lesser included offenses of aggravated and/or reckless manslaughter.   Similarly, if there is a rational basis for a jury to find that defendant reasonably believed in the necessity to use force, and honestly but unreasonably believed that he/she needed to resort to deadly force to repel the danger that he/she faced, it could conclude that he/she acted in the heat of passion resulting from a reasonable provocation, which would justify submission of passion/provocation manslaughter as a lesser included offense of murder.  State v. Powell, 84 N.J. 305, 312 n. 7 and 313 (1980); Pridgen, 245 N.J. Super. at 244. [2]  Note 1:  N.J.S.A. 2C:2-9 (b) provides that in the prosecution for murder, the defense of duress is only available to reduce the degree of the crime to manslaughter.             Note 2:  This defense is unavailable if the defendant was criminally negligent in placing (himself/herself) in such a situation, whenever criminal negligence suffices to establish culpability for the substantive offense charged.  N.J.S.A. 2C:2-9 (b).             Note 3:  The State has the burden of disproving the affirmative defense of duress.  State v. Galiyano, 178 N.J. Super. 293 (App. Div. 1981).  This holding is consistent with N.J.S.A. 2C:1-13b which provides that the State must disprove an affirmative defense unless another statute requires otherwise.  Neither N.J.S.A. 2C:2-9, nor any other statute, requires the defendant to prove such a defense.  But note the Supreme Court decision of State v. Toscano, 74 N.J. 421 (1977) which places upon the defendant the burden of persuasion on the issue of duress in that (he/she) must establish the defense by a preponderance of the evidence in order to win an acquittal. [3]           N.J.S.A. 2C:2-9 (b). [4]           N.J.S.A. 2C:3-11 (a). [5]           State v. Toscano, 74 N.J. 421, 442 (1977).