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Criminal Jury Instructions

Criminal Jury Instructions Home

2.8-1  Self-Defense and Defense of Others -- § 53a-19

Revised to June 12, 2009 (modified May 23, 2013)

The evidence in this case raises the issue of (self-defense / the defense of others).  (Self-defense / The defense of others) applies to the charge[s] of <insert applicable crimes> [and the lesser included offense[s] of <insert lesser included offenses>.]

After you have considered all of the evidence in this case, if you find that the state has proved beyond a reasonable doubt each element of a crime to which (self-defense/defense of others) applies, you must go on to consider whether or not the defendant acted in (self-defense / the defense of others).  In this case you must consider this defense in connection with count[s] __ of the information.

A person is justified in the use of force against another person that would otherwise be illegal if (he/she) is acting in the defense of (self / others).  It is a complete defense to certain crimes, including <insert applicable crimes>. When, as in this case, evidence of (self-defense / the defense of others) is introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant acted in (self-defense / the defense of others).  If the state fails to disprove beyond a reasonable doubt that the defendant acted in (self-defense / the defense of others), you must find the defendant not guilty despite the fact that you have found the elements of the crime proved beyond a reasonable doubt. The defendant has no burden of proof whatsoever with respect to this defense.

There is a statute that defines (self-defense / the defense of others) and you are to apply that definition in reviewing the evidence in this case and not apply any common or colloquial meaning that you may have heard before.  The statute defining (self-defense / the defense of others) reads in pertinent part as follows:

a person is justified in using reasonable physical force upon another person to defend (himself/herself/a third person) from what (he/she) reasonably believes to be the use or imminent use of physical force, and (he/she) may use such degree of force which (he/she) reasonably believes to be necessary for such purpose.

The statute requires that, before a defendant uses physical force upon another person to defend (himself/herself/a third person), (he/she) must have two "reasonable beliefs."  The first is a reasonable belief that physical force is then being used or about to be used upon (him/her/a third person).  The second is a reasonable belief that the degree of force (he/she) is using to defend (himself/herself/a third person) from what (he/she) believes to be an ongoing or imminent use of force is necessary for that purpose. 

Deadly and non-deadly physical force1
The law distinguishes non-deadly physical force from deadly physical force.  "Physical force" means actual physical force or violence or superior physical strength.  The term "deadly physical force" is defined by statute as physical force which can reasonably be expected to cause death or serious physical injury.  Under this definition, the physical force used by the defendant need not actually have caused a death or a serious physical injury in order to be considered deadly physical force, nor need it have been expected or intended by the defendant to result in such serious consequences.  Instead, what determines whether the defendant used deadly physical force is whether the force actually used by the defendant could reasonably have been expected to cause death or serious physical injury. "Physical injury" is defined by statute as impairment of physical condition or pain, and "serious physical injury" is defined as physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.

It is up to you to determine whether the defendant used deadly physical force or non-deadly physical force against <insert name of the other person>. You are to make that determination after considering all the evidence.  If the state claims that the defendant used deadly physical force, the state must prove that beyond a reasonable doubt.  The first question you must resolve, then, is whether the level of force used by the defendant rises to the level of deadly physical force, or is some lower degree of physical force.

Reasonable beliefs
Once you have determined whether the defendant has used deadly or non-deadly force, you must then go on to consider whether the defendant justifiably acted in (self-defense / defense of others). 

[<Optional language:>2  The test you are to apply is a subjective-objective test, meaning that it has some subjective aspects and some objective aspects.  You must first consider the situation from the perspective of the defendant; that is, what did the defendant actually believe, as best as can be inferred from the evidence.  This is the subjective aspect of the test.  The statute requires, however, that the defendant's belief be reasonable, and not irrational or unreasonable under the circumstances; that is, would a reasonable person in the defendant's circumstances have reached that belief.  This is the objective aspect of the test.]

Each of the reasonable belief requirements of the statute requires you to ask two questions.  The first question you must ask is, simply, as a matter of fact, whether the defendant actually -- that is, honestly and sincerely -- entertained the belief in question when (he/she) acted as (he/she) did.  The second question you must ask is whether the defendant's actual belief was reasonable, in the sense that a reasonable person in the defendant's circumstances at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have shared that belief.  A defendant cannot justifiably act on (his/her) actual belief, however honestly or sincerely (he/she) held it, if that belief would not have been shared by a reasonable person in (his/her) circumstances, viewing those circumstances from the defendant's point of view.  Therefore, the defense of (self-defense / defense of others) has four elements:3

1.         The defendant actually believed that someone else was using or about to use physical force against (him/her/a third person).  If you have found that the force used by the defendant was deadly physical force, then this element requires that the defendant actually believed that the other person 1) was using or about to use deadly physical force against (him/her/a third person), or 2) was inflicting or about to inflict great bodily harm upon (him/her/a third person).

2.         That belief was reasonable because a reasonable person in the defendant's circumstances, viewing those circumstances from the defendant's perspective, would have shared that belief.

3.         The defendant actually believed that the degree of force (he/she) used was necessary to repel the attack.  Again, if you have found that the force used by the defendant was deadly physical force, then this element requires that the defendant actually believed that deadly physical force was necessary to repel the attack.

4.         That belief was reasonable because a reasonable person in the defendant's circumstances, viewing those circumstances from the defendant's perspective, would have shared that belief.

The defendant has no burden of proof regarding any of these elements.  Instead, the state bears the sole and exclusive burden of proving beyond a reasonable doubt that the defendant did not act in (self-defense / the defense of others), a burden it can meet by disproving at least one of these elements beyond a reasonable doubt.  I will go over each of these elements again in detail. 

Element 1 - Actual belief regarding use of physical force by other person
The first element is that when the defendant used defensive force against <insert name of other person>, (he/she) actually -- that is, honestly and sincerely -- believed that the other person was using or about to use physical force against (him/her/<insert name of third person>).  The word "using" has its ordinary meaning, that is, the other person has already begun to use force.  The word "imminent" means that the person is about to use physical force at that time.  It does not encompass the possibility that an act of physical force may take place at some unspecified future time.

If you have found that the force used by the defendant was deadly physical force, then you must find that the defendant actually believed that <insert name of other person> was not only using or about to use physical force upon (him/her/<insert name of third person>), but that the other person was either using or about to use deadly physical force against (him/her/<insert name of third person>), or inflicting or about to inflict great bodily harm upon (him/her/<insert name of third person>).  "Great bodily harm" is not limited by the definition of serious physical injury and may encompass other acts such as sexual assault or the threat of sexual assault.4  The term "great" has its ordinary meaning and indicates a bodily harm that is substantially more than minor or inconsequential harm.

The act of <insert name of other person> leading to the defendant's use of defensive physical force need not be an actual threat or assault.  The test is not what the other person actually intended, but what the other person's act caused the defendant to believe was the intention of the other.  In other words, the danger to which the defendant was reacting need not have been actual or real.  In judging the danger to (himself/herself/<insert name of third person>) the defendant is not required to act with infallible judgment.  A person acting in (self-defense / the defense of others) is sometimes required to act instantly and without time to deliberate and investigate.  Under such circumstances it is possible to perceive an actual threat when none in fact existed. 

Element 2 - Reasonableness of that belief
The second element is that the defendant's actual belief about the force being used or about to be used against (him/her/<insert name of third person>) was a reasonable belief.  This means that under the circumstances of the case, viewing those circumstances from the defendant's point of view, the defendant's actual belief that <insert name of other person> was using or about to use physical force or deadly physical force against (him/her/<insert name of third person>) was reasonable because a reasonable person in the defendant's situation at the time of (his/her) actions, viewing the circumstances from the defendant's point of view, would have shared that belief.

Element 3 - Actual belief regarding degree of force necessary
The third element is that when the defendant used physical force upon <insert name of other person> for the purpose of defending (himself/herself/<insert name of third person>), (he/she) actually -- that is, honestly and sincerely -- believed that the degree of force (he/she) used was necessary for that purpose.  This applies whether you have found that the defendant used deadly physical force or not.  The question is whether the defendant believed that it was necessary to use the degree of force that (he/she) used to defend (himself/herself/<insert name of third person>) from the attack.

Element 4 - Reasonableness of that belief
The fourth element is that the defendant's actual belief about the degree of force necessary to defend (himself/herself)/<insert name of third person> was a reasonable belief.  This means that under the circumstances of the case, viewing those circumstances from the defendant's point of view, the defendant's actual belief that the degree of force used was necessary to defend (himself/ herself/ <insert name of third person>) was reasonable because a reasonable person in the defendant's circumstances at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have shared that belief.

Exceptions
<Insert any applicable statutory disqualifications.  See Exceptions to Justification: Provocation, Initial Aggressor, Combat by Agreement, Instruction 2.8-2 and Exceptions to use of Deadly Physical Force: Duty to Retreat, Surrender Property, Comply with Demand, Instruction 2.8-3.>

The state's burden5
You must remember that the defendant has no burden of proof whatsoever with respect to the defense of (self-defense / the defense of others). Instead, it is the state that must prove beyond a reasonable doubt that the defendant did not act in (self-defense / the defense of others) if it is to prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses on which you have been instructed]. To meet this burden, the state need not disprove all four of the elements of (self-defense / the defense of others).  Instead, it can defeat the defense of (self-defense / the defense of others) by disproving any one of the four elements of self-defense beyond a reasonable doubt to your unanimous satisfaction.  You must find that the defendant did not act in (self-defense / defense of others), if you find any of the following:

1.         The state has proved beyond a reasonable doubt that, when the defendant used physical force, (he/she) did not actually believe that <insert name of other person> was using or about to use physical force against (him/her/<insert name of third person>).   If you have found that the force used by the defendant was deadly physical force, then the state must prove that the defendant did not actually believe that the other person 1) was using or about to use deadly physical force against (him/her/a third person), or 2) was inflicting or about to inflict great bodily harm upon (him/her/a third person).

            OR

2.         The state has proved beyond a reasonable doubt that the defendant's actual belief concerning the degree of force being, or about to be, used against (him/her) was unreasonable, in the sense that a reasonable person, viewing all the circumstances from the defendant's point of view, would not have shared that belief.

            OR

3.         The state has proved beyond a reasonable doubt that, when the defendant used physical force to defend (himself/herself/<insert name of third person>) against <insert name of other person>, (he/she) did not actually believe that the degree of force (he/she) used was necessary for that purpose.  Here again, as with the first requirement, an actual belief is an honest, sincere belief.

            OR

4.         The state has proved beyond a reasonable doubt that, if the defendant did actually believe that the degree of force (he/she) used to defend (himself/herself/<insert name of third person>) against <insert name of other person> was necessary for that purpose, that belief was unreasonable, in the sense that a reasonable person, viewing all the circumstances from the defendant's point of view, would not have shared that belief.

[<If any statutory disqualifications have been included:>

You  must also find that the defendant did not act in (self-defense / defense of others), if you find that the state has proved beyond a reasonable doubt that <insert the statutory disqualifications upon which the jury has been instructed:>

  • Provocation:  the defendant provoked <insert name of decedent/complainant> into using physical force against (him/her).

  • Initial aggressor:  the defendant was the initial aggressor in the encounter.

  • Combat by agreement:  the physical encounter between the defendant and <insert name of other person> was a combat by agreement.

  • Duty to retreat:  the defendant had a duty to retreat from the physical encounter because (he/she) knew (he/she) could do so with complete safety.

  • Surrender property:  the defendant knew that (he/she) would not need to use physical force against <insert name of other person> if (he/she) surrendered property to <insert name of other person>.

  • Comply with demand:  the defendant knew that (he/she) would not need to use physical force against <insert name of other person> if (he/she) complied with the demand to <insert name of demand>.]

Conclusion
If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of a crime to which (self-defense/defense of others) applies, you shall then find the defendant not guilty and not consider the defense.

If you unanimously find that all the elements of a crime to which (self-defense/defense of others) applies have been proved beyond a reasonable doubt, you shall then consider the defense of (self-defense / defense of others).  If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense [or has proved one of the statutory disqualifications], you must reject that defense and find the defendant guilty.

If, on the other hand, you unanimously find that the state has not disproved beyond a reasonable doubt at least one of the elements of the defense,  [or has not proven one of the statutory disqualifications], then on the strength of that defense alone you must find the defendant not guilty despite the fact that you have found the elements of the crime proved beyond a reasonable doubt.6
_______________________________________________________

1 If there is an issue as to whether the degree of force used was non-deadly physical force or deadly physical force, it should be submitted to the jury.  If the parties stipulate to it on the record you may instruct the jury that "the parties agree that in this case the force used was deadly."  See State v. Dorans, 261 Conn. 730, 746 n.9 (2002) (sufficient evidence that force used was deadly to submit question to jury); State v. Whitford, 260 Conn. 610, 631 (2002) (court properly gave supplemental instruction that jury should determine the level of force, when victim suffered stab wounds that could have been fatal but were not); State v. Wayne, 60 Conn. App. 761, 765 (2000) (court improperly instructed the jury that the defendant, as a matter of law, had used deadly physical force by pointing a gun at victim).

2 It is well established that § 53a-19 imposes a "subjective-objective" inquiry on a claim of self-defense or defense of others.  This means that a defendant's "reasonable beliefs" must be evaluated from the defendant's subjective point of view, i.e., what he or she actually believed, and from an objective point of view, i.e., what a reasonable person in the defendant's situation would have believed.  See the discussion in the Introduction to this section.  The basic approach to self-defense thus requires the jury to ask, and answer, four questions:  1) Did the defendant believe that he/she was being subjected to imminent physical harm? 2) Would a reasonable person in the defendant's situation have believed that to be so?  3) Did the defendant believe that the degree of force he/she used was necessary to ward off the attack?  4) Would a reasonable person in the defendant's situation have believed that such a degree of force was necessary?  An instruction that clearly guides the jury in addressing these four questions has properly instructed it on applying the subjective-objective standard.  Optional language is included at the beginning of this section of the instruction to provide the jury with an analytical description of the standard. 

3 The model instruction takes the approach of calling each of the inquiries the jury must make "elements," analytically similar to the elements of an offense.  They may also be labeled "parts" or "components," or simply "circumstances under which a person is not justified in using physical force in self-defense."

4 See State v. Havican, 213 Conn. 593, 600-601 (1990) (concluding that "the threat of great bodily harm and the threat of serious physical injury are two separate grounds that each justify the use of deadly force in self-defense").

5 The appellate courts have not addressed the issue of whether the state's burden of proof on a claim of self-defense is best expressed in the positive ("the state must prove that the defendant did not believe….") or the negative ("the state must disprove that the defendant believed….").  Although they have recited portions of trial courts' charges that have stated the burden of proof in both ways; see, e.g., State v. Singleton, 97 Conn. App. 679, 693 (2006), rev'd on other grounds, 292 Conn. 734 (2009); State v. Peters, 40 Conn. App. 805, 817 (1996); such recitation carries no "precedential imprimatur" with regard to the propriety or impropriety of either approach.  See State v. Romero, 269 Conn. 481, 490 (2004). 

6 See State v. Terwilliger, 294 Conn. 399, 417-18 (2009) (advisable to instruct the jury on the consequences of the state's failure to meet its burden as it may enhance the jury's understanding of the defense).

Commentary

"Although § 53a-19 provides for two separate, but related defenses -- self-defense and defense of others -- [the Supreme Court has] interpreted the provision consistently without regard to the specific type of claim asserted thereunder. . . . [B]ecause [the] court has had far fewer occasions to consider defense of others claims under § 53a-19, [the court] looks to [its] precedents concerning the application of this section to self-defense claims to [claims of defense of others]." State v. Bryan, 307 Conn. 823, 833-34 (2013).

If the evidence, if believed, is sufficient to raise "a reasonable doubt in the mind of a rational juror" as to whether the defendant acted in self-defense, then the defendant is entitled to a jury instruction on the defense.  State v. Edwards, 234 Conn. 381, 390 (1995). 

A defendant does not have to "admit that he intended to kill the victim to assert the justification of self-defense."  State v. Miller, 55 Conn. App. 298, 300 (1999), cert. denied, 252 Conn. 923 (2000).  Furthermore, a defendant is permitted to present inconsistent defenses.  Id., 301.  Accordingly, a defendant is entitled to an instruction on the defense of self-defense if the evidence warrants it, even if the evidence would also support a claim of innocence because of an unintended or accidental shooting.  Id.

"Self-defense is a valid defense to crimes based on reckless conduct as well as intentional conduct."  State v. Jones, 39 Conn. App. 563, 567 n.4 (1995); see also State v. Hall, 213 Conn. 579, 586 (1990); State v. King, 24 Conn. App. 586, 590-91, cert. denied, 219 Conn. 912 (1991).

As a matter of law, self-defense is not available as a defense to a charge of felony murder.  State v. Amado, 254 Conn. 184, 197-202 (2000); State v. Burke, 254 Conn. 202, 205 (2000).  This holding is "consistent with the purpose underlying felony murder, which is to punish those whose conduct brought about an unintended death in the commission or attempted commission of a felony. . . .  The felony murder rule includes accidental, unintended deaths.  Indeed, we have noted that crimes against the person like robbery, rape and common-law arson and burglary are, in common experience, likely to involve danger to life in the event of resistance by the victim. . . .  Accordingly, when one kills in the commission of a felony, that person cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony murder [statute]."  (Citations omitted; internal quotation marks omitted.)  State v. Amado, supra, 254 Conn. 201. 

Self-defense is not applicable to "status offenses," such as carrying a dangerous weapon; State v. Holloway, 11 Conn. App. 665, 771 (1987); or carrying a pistol without a permit.  State v. Bailey, 209 Conn. 322, 238 (1988).  But see State v. Ramos, 271 Conn. 785, 803 (2004) ("when the item that the defendant is charged with having in the vehicle is an otherwise legal item and did not become a dangerous instrument within the meaning of § 29-38 until it was used in self-defense, the defendant may raise § 53a-19 as a defense").

When a defendant is charged with multiple offenses, only some of which self-defense may apply to, the instruction must clearly state that self-defense does not apply to all of the offenses.  State v. Davis, 261 Conn. 553, 573 (2002) (self-defense did not apply to charge of interference with an officer, but would apply to assault charges arising out of the same conduct); State v. Wright, 77 Conn. App. 80, 86-87, cert. denied, 266 Conn. 913 (2003) (self-defense did not apply to count charging defendant as accessory).

Whether a person claiming defense of a third party has a duty to retreat depends on whether the person being defended has a duty to retreat. State v. Rodriguez, 47 Conn. App. 91, 96, cert. denied, 243 Conn. 960 (1997).
 


 

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