SC Chapter 8 – defenses. Self-defense

SC Chapter 8 – defenses. Self-defense

State: South Carolina

 

South Carolina Criminal Jury Charges

SC Chapter 8 –  defenses.  Self-defense

The defendant has raised the defense of self-defense.  Self-defense is a complete defense and, if it is established, you must find the defendant not guilty.  The state has the burden of disproving selfdefense by proof beyond a reasonable doubt.

If you have a reasonable doubt of the defendant’s guilt after considering all the evidence, including the evidence of self-defense, then you must find the defendant not guilty.  On the other hand, if you have no reasonable doubt of the defendant’s guilt after considering all the evidence, including the evidence of self-defense, then you must find the defendant guilty.

The following elements are required to establish self-defense.

(1) Without fault

First, the defendant must be without fault in bringing on the difficulty.  If the defendant’s conduct was the type which was reasonably calculated to, and did, provoke a deadly assault, the defendant would be at fault in bringing on the difficulty and would not be entitled to an acquittal based on self-defense.

Contemptuous language

Self-defense is not available to a person who uses language which is so contemptuous that a reasonable person would expect it to bring on a physical encounter, and which did actually contribute to the physical encounter.8

Mutual combat

If the defendant voluntarily participated in mutual combat for purposes other than protection, the killing of the victim would not be self-defense.  This is true even if, during the combat, the defendant feared death or serious bodily injury.  However, if, before the killing is committed, the defendant withdraws and tried in good faith to avoid further conflict, and either by word or act, makes that fact known to the victim, he would be without fault in bringing on the difficulty.

For mutual combat there must be a mutual intent and willingness to fight.  This intent may be shown by the acts and conduct of the parties and the circumstances surrounding the combat.

In addition, it must be shown that both parties were armed with a deadly weapon.

Battered person’s syndrome

If the defendant killed his (her) abuser during a confrontation when the abuser clearly is the aggressor, this element is satisfied.  However, it may be possible to characterize a battered person as the victim of a continuing assault at the hands of the batterer.  When this is the case, the first element of self-defense may be satisfied even though the battered person acts at a time when the batterer is not being physically abusive.

(2) imminent danger

The second element of self-defense is that the defendant was actually in imminent danger of death or serious bodily injury or that the defendant actually believed he (she) was in imminent danger of death or serious bodily injury.

If the defendant was actually in imminent danger, it must be shown that the circumstances would have warranted a person of ordinary firmness and courage to strike the fatal blow to prevent death or serious bodily injury.  If the defendant believed he (she) was in imminent danger of death or serious bodily injury, it must be shown that a reasonably prudent person of ordinary firmness and courage would have had the same belief.

In deciding whether the defendant actually was, or believed he (she) was, in imminent danger of death or serious bodily injury, you should consider all the facts and circumstances surrounding the crime, including the physical condition and characteristics of the defendant and the victim.

Right to act on appearance

The defendant does not have to show that he (she) was actually in danger.  It is enough if the defendant believed he (she) was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief.  The defendant has the right to act on appearances even though the defendant’s beliefs may have been mistaken.

It is for you to decide whether the defendant’s fear of immediate danger of death or serious bodily injury was reasonable and would have been felt by an ordinary person in the same situation.

Battered person’s syndrome

At times, a battered person actually is in imminent danger of violence when he (she) acts.   Depending on the facts of the case, the defendant may act in self-defense if he (she) believes he (she) is in imminent danger of death or serious bodily harm even though the batterer is not being physically abusive when the defendant acts.  This is because battered persons can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse.  Often the terror does not decrease, even when the batterer is absent or asleep.  Where torture appears interminable and escape impossible, the belief that only the death of the batterer can provide relief may be reasonable in the mind of a person of ordinary firmness.

Words accompanied by hostile acts

Words accompanied by hostile acts may, depending on the circumstances, establish self-defense.

Prior difficulties

Evidence of prior difficulties between the defendant and the victim may be considered in deciding whether a threat existed, whether the defendant had a reason to believe a threat existed, and how serious that threat was. 

Size and age

The relative sizes, ages, and weights of the defendant and the victim may be considered in deciding the apparent or actual need for force in self-defense and the amount of force needed.

Victim’s violent reputation

The reputation of the victim as a violent person may be considered in deciding whether there was a need for force, whether the defendant had reason to believe there was a need for force, and whether deadly force was reasonably necessary.

Prior violence by victim

Prior instances of violence by the victim may be considered in deciding whether the defendant actually believed he (she) was in imminent danger of death or serious bodily injury or was actually in imminent danger.

Threats by the victim

Threats made by the victim may be considered in determining whether the defendant actually was, or believed he (she) was, in imminent danger.

Intoxication

The intoxication of the victim may be considered in deciding whether the defendant’s fear of death or bodily harm was reasonable.

(3) no other way to avoid danger

The final element of self-defense is that the defendant had no other probable way to avoid the danger of death or serious bodily injury than to act as the defendant did in this particular instance.

Duty to retreat

Premises

If the defendant was on his (her) own premises, the defendant had no duty to retreat before acting in self-defense.

Business

If the defendant was in his (her) place of business, the defendant had no duty to retreat before acting in self-defense.

Increased risk of harm

The defendant had no duty to retreat if, by doing so, the danger of being killed or suffering serious bodily injury would increase.

Lawful guest

A lawful guest in another’s home has no duty to retreat before using deadly force in self-defense against an intruder.  A lawful guest is a person who enters the premises of another by either express or implied invitation.  However, a guest has a duty to retreat, where possible, if the attacker is the owner or occupier of the property.

Battered person’s syndrome

A battered person who is held hostage by the batterer may have no other means of avoiding a battering than to kill the batterer in self-defense.  A battered person who acts while on his (her) own premises has no duty to retreat.

By | 2013-01-18T08:59:18+00:00 January 18th, 2013|Comments Off on SC Chapter 8 – defenses. Self-defense