What is Self Defense

 

What is Self Defense 

What is Self Defense 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. 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 3:12Failure to give Miranda warnings is not a defense.