MO 406.06 JUSTIFICATION: USE OF PHYSICAL FORCE IN SELF-DEFENSE

MO 406.06 JUSTIFICATION: USE OF PHYSICAL FORCE IN SELF-DEFENSE

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Missouri Approved Instructions–Criminal (MAI-CR) 4th

406.06 JUSTIFICATION: USE OF PHYSICAL FORCE IN SELF-DEFENSE

One of the issues (as to Count ______) (in this case) is whether the use of physical force by the defendant against [Identify victim.] was lawful. On the issue of self-defense (as to Count _______) (in this case), you are instructed as follows:

In this state the use of physical force (, including the use of deadly force,) to defend oneself is lawful in certain situations. [Select the appropriate paragraphs. Omit brackets and number.]

[Use the material in [1] unless there is no evidence the defendant was the “initial aggressor.” Omit brackets and number.]

[1] However, an initial aggressor is not justified in using physical force to defend himself from the counter attack that he provoked.

(A person who is the initial aggressor in an encounter can regain the privilege of using physical force in lawful self-defense if he withdraws from the original encounter and clearly indicates to the other person his desire to end the encounter. Then, if the other person persists in continuing the conflict by threatening to use or by using unlawful force, the first person is no longer the initial aggressor, and he can then lawfully use physical force to defend himself.)

[Use the material in [2] only if there is evidence that defendant’s use of physical force was in connection with the commission of or escape after the commission of a forcible felony. The forcible felony cannot be the felony for which the defendant is charged and is claiming self-defense. See Notes on Use 6. See Notes on Use 8 as to what constitutes a forcible felony and how to deal with an attempted forcible felony. Omit brackets and number. Use the lead in “And a” if the material in bracket [1] is used but the material in parentheses dealing with withdrawal is not used. Use the lead in “But a” if the material in bracket [1] is not used. Use “A” if the material on withdrawal is used.]

[2] (And a) (But a) (A) person is not justified in using physical force to defend himself if he was (attempting to commit) (committing) (escaping after the commission of) [Insert name of forcible felony, which cannot be the felony for which the defendant is charged and is claiming self-defense.]

[Use the material in [3] in all cases. Omit brackets and number. See Notes on Use 7 as to what constitutes deadly force. The parenthetical term “non-deadly” should only be selected if the material in [4] is used.]

[3] In order for a person lawfully to use (non-deadly) physical force in self-defense, he must reasonably believe such physical force is necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful force and he can only use physical force to the extent that he reasonably believes is necessary to defend himself.

[Use the material in [4] only if there is evidence the defendant used deadly force. Omit brackets and number.]

[4] But a person is not permitted to use deadly force unless he reasonably believes that the use of deadly force is necessary to protect himself against (death or serious physical injury) (the commission of a forcible felony).

A person is not required to retreat before resorting to the use of physical force to defend himself if he is (lawfully (entering) (remaining) in a (dwelling) (residence) (vehicle)) (on private property (owned) (leased) by the person) (in a location the person has the right to be).

The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty (under Count ______).

(As used in this instruction, an “initial aggressor” is one who first (attacks) (or) (threatens to attack) another.)

As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

(As used in this instruction, “deadly force” means physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury.)

(As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.)

(As used in this instruction, the term [Insert name of forcible felony within quotation marks.] means [Insert definition of the forcible felony. See Notes on Use 8 and 12.].)

406.06 EVIDENTIARY MATTERS

[Insert any of the following numbered paragraphs that are supported by the evidence and requested in writing in proper form by either party. Omit brackets and numbers.]

[1] Evidence has been introduced (of the reputation of the 
defendant for being [Insert trait or traits, such as “peaceful and law-abiding” or “violent and turbulent.”]) (and) (of the reputation of [Identify victim.] for being [Insert trait or traits.]). You may consider this evidence in determining who was the initial aggressor in the encounter (and for no other purpose).

[2] Evidence has been introduced that [Identify victim.] had a reputation for being (violent) (violent and turbulent) ([other trait or traits indicating aggressiveness]), and that the defendant was aware of that reputation. You may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force by [Identify victim.].

[3] Evidence has been introduced of the prior relationship between defendant and [Identify victim.] (including evidence of (arguments) (and) (acts of violence)). You may consider this evidence in determining who was the initial aggressor in the encounter (, and you may also consider it in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the (use) (or) (imminent use) of unlawful force by [Identify victim.].

[4] Evidence has been introduced of acts of violence not involving the defendant committed by [Identify victim.] 
and that the defendant was aware of these acts. You may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force. You may not consider this evidence in determining who was the initial aggressor in the encounter or for any other reason.

Evidence has been introduced (of threats made by [Identify victim.] against defendant) (and) (evidence of threats made by defendant against [Identify victim.]). You may consider this evidence in determining who was the initial aggressor in the encounter.

If any threats against defendant were made by [Identify victim.] and were known by or had been communicated to the defendant, you may consider this evidence in determining whether the defendant reasonably believed that the use of physical force was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful force by [Identify victim.].

[If any of the numbered paragraphs above are used, the following sentence will be used at the end.]
You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.

(v. 7-1-17)

By | 2018-05-01T07:03:40+00:00 April 30th, 2018|Comments Off on MO 406.06 JUSTIFICATION: USE OF PHYSICAL FORCE IN SELF-DEFENSE