HI 7.01A. Self-Defense When The Use of “Deadly Force” Is At Issue.
HAWAI’I JURY INSTRUCTIONS (HAWJIC)
HI 7.01A. Self-Defense When The Use of “Deadly Force” Is At Issue.
[Replaced 7.01, 2011.]
Self-defense is a defense to the charge(s) of (specify charge and its included offenses). Self-defense involves consideration of two issues. First, you must determine whether the defendant did or did not use “deadly force.” Second, you must determine whether the force used was justified. The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty.
The first issue is: Did the defendant use “deadly force?”
“Deadly Force” means force which the defendant uses with the intent of causing, or which he/she knows to create a substantial risk of causing, death or serious bodily injury.
“Force” means any bodily impact, restraint, or confinement, or the threat thereof.
[Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.]
[Intentionally firing a firearm in the direction of another person or in the direction which the person is believed to be constitutes deadly force.]
[A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor’s intent is limited to creating an apprehension that he/she will use deadly force if necessary, does not constitute deadly force.]
If you determine that the defendant used “deadly force,” then you are to proceed to the section in this instruction entitled “Deadly Force Used.” If you determine that the defendant did not use “deadly force,” then you are to proceed to the section in this instruction entitled “Deadly Force Not Used.” You must then follow the law in the applicable section to determine the second issue, which is whether the force used by the defendant was justified.
“Deadly Force” Used
The use of deadly force upon or toward another person is justified if the defendant reasonably believes that deadly force is immediately necessary to protect himself/herself on the present occasion against [death] [serious bodily injury] [kidnapping] [rape] [forcible sodomy]. The reasonableness of the defendant’s belief that the use of protective deadly force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the deadly force was used.
[The use of deadly force is not justifiable if the defendant, with the intent of causing death or serious bodily injury, provoked the use of force against himself/herself in the same encounter].
[The use of deadly force is not justifiable if the defendant knows that he/she can avoid the necessity of using such force with complete safety by retreating, but the defendant is not required to retreat from his/her own dwelling unless he/she was the initial aggressor. “Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a home or place of lodging.]
[The use of deadly force is not justifiable if the defendant knows that he/she can avoid the necessity of using such force with complete safety by retreating, but the defendant is not required to retreat from his/her place of work unless he/she was the initial aggressor or is assailed in his/her place of work by another person whose place of work the defendant knows it to be.]
[The use of deadly force is not justifiable if the defendant knows that he can avoid the necessity of using such force with complete safety by [surrendering possession of a thing to a person asserting a claim of right thereto] [complying with a demand that he abstain from any action which he has no duty to take], but when the defendant [is a public officer justified in using force in the performance of his/her duties, or is a person justified in using force in assistance of that public officer] [is a person justified in making an arrest or preventing an escape], the defendant is not obliged to desist from efforts to [perform the duty] [effect the arrest or prevent the escape], because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.]
“Deadly Force” Not Used
The use of force upon or toward another person is justified if the defendant reasonably believes that force is immediately necessary to protect himself/herself on the present occasion against the use of unlawful force by the other person. The reasonableness of the defendant’s belief that the use of protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be. The defendant may estimate the necessity for the use of force under the circumstances as he/she reasonably believes them to be when the force is used, without [retreating] [surrendering possession] [doing any other act that he/she has no legal duty to do] [abstaining from any lawful action].
[The use of force is not justifiable to resist an arrest which the defendant knows is being made by a law enforcement officer, even if the arrest is unlawful, but is justifiable if the officer threatens to use or uses unlawful force.]
[The use of force is not justifiable to resist force used by the occupier or possessor of property or by another person on his/her behalf, where the defendant knows that the person using the force is doing so under a claim of right to protect the property, but is justifiable if the defendant [is a public officer acting in the performance of his duties or a person lawfully assisting the officer therein] [is a person making or assisting in a lawful arrest] [reasonably believes that force is necessary to protect himself/herself against death or serious bodily injury.]
[The use of confinement as force is justifiable only if the defendant takes all reasonable measures to terminate the confinement as soon as he/she knows that he/she safely can, unless the person confined has been arrested on a charge of crime.]
“Force” means any bodily impact, restraint, or confinement, or the threat thereof.
“Unlawful force” means force which is used without the consent of the person against whom it is directed and the use of which would constitute an unjustifiable use of deadly force or force. A person cannot consent to the infliction of death, serious bodily injury, or substantial bodily injury.
“Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
“Substantial bodily injury” means bodily injury which causes: [A major avulsion, laceration, or penetration of the skin]; [a burn of at least second degree severity]; [a bone fracture]; [a serious concussion]; [or a tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs].
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
[Self-defense is not available for the offense(s) of (specify any offense in which the requisite state of mind is either recklessness or negligence) if the prosecution proves that:
(1) the defendant was reckless in believing that he/she was justified in using deadly force or force against the other person; or
(2) the defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his/her use of deadly force or force against the other person.]