From the National Association of Criminal Defense Lawyers (NACDL):
Defending the Self-Defense Case
By Lisa J. SteeleMarch 2007
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.
“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)
Self-defense trainers refer to adversaries or aggressors who have the ability and opportunity to cause harm, and reasonable people who, observing the aggressive conduct, believe they are in immediate jeopardy of death or serious injury. Essentially, these factors (called the AOJ triad) restate the common law of self-defense.
- Ability means the aggressor has the capacity to kill or seriously injure the defender. The attorney should ask the jury to consider relative age, strength, gender, training, level of aggressiveness, weapons, number of aggressors versus number of defenders, etc.
- Opportunity means the aggressor is in a position to use his ability. Look at distance, obstacles between the aggressor and defender, cover, and escape routes. An aggressor armed with a firearm has a greater opportunity to harm a defender at range than one armed with a baseball bat.
- Jeopardy means that the aggressor’s behavior would lead the defender, and a reasonable observer, to conclude the defender is in imminent danger. Look to threats, gestures, and sudden movement towards the defender. Also consider the defender’s age, fitness, and health. If the defender was injured or was unable to flee due to ill health or disability, he or she might have been in jeopardy earlier than a healthy or uninjured person.
There is no reason for a client to fire a warning shot. It would be contrary to public policy for the courts to require, or even encourage, warning shots. First, most handgun bullets are capable of penetrating standard building materials with enough force to injure or even kill someone on the other side of a wall or window. No one should be encouraged to place a bystander at risk by firing such a shot. Second, even if there is an appropriate surface at which to shoot, the client has to take his or her eyes off the aggressor at least for a moment to choose an appropriate target. During that time, the aggressor can attack the client before he or she can bring the firearm back on target. If the client is justified in shooting at all, he or she is justified in shooting at the aggressor.
Law enforcement officers cannot protect citizens at all times. The right of citizens to protect themselves is critically important to our society. It is a right, enshrined in many state constitutions, that needs to be zealously protected by the vigorous efforts of criminal defense attorneys. If the right becomes uncertain, murky, or counter-intuitive, citizens will be reluctant to take action to protect themselves and others for fear of criminal prosecution. That fear, and the consequent passivity, will “lead to the alienation of people from one another, an alienation symbolized for our time by the notorious Genovese incident (Com. v. Martin, 369 Mass. 640, 649, 341 N.E.2d 885 (1976). The Supreme Judicial Court is referring to the brutal murder of Catherine “Kitty” Genovese in Queens, New York, in 1964, where 38 neighbors heard her cries for help while being attacked, yet not a single neighbor came to her aid or even called the police.). To the fear of ‘involvement’ and of injury to oneself if one answered a call for help would be added the fear of possible criminal prosecution.”
The right of self-defense deserves an attorney’s most vigorous efforts.
self-defense, handgun, firearm
