HAWAI’I JURY INSTRUCTIONS (HAWJIC)

HI 7.02B  Defense Of Others When Deadly Force Is Not At Issue.

Section 1 – Defense; Burden of Proof

Defense of others is a defense to the charge(s) of (specify charge and its included offenses).  The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justifiable. If the prosecution does not meet its burden, then you must find the defendant not guilty.

Section 2 – When Force is Justifiable

The use of force upon or toward another person is justifiable to protect a third person if, under the circumstances as the defendant reasonably believes them to be, the third person would be justified in using force to protect himself/herself on the present occasion against the use of unlawful force by the other person and the defendant reasonably believes that his/her intervention is immediately necessary to protect the third person.  The reasonableness of the defendant’s belief that the use of 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 defendant’s belief that the use of force was immediately necessary may be mistaken, but reasonable.]

Section 3 – When Force is Not Justifiable:  Third Person Resisting Arrest or Force Used Under Claim of Right

[The use of force to protect a third person is not justifiable if the defendant reasonably believes that the third person is resisting an arrest the third person knows is being made by a law enforcement officer, even if the arrest is unlawful, but is justifiable if the defendant reasonably believes that the officer is threatening to use or using unlawful force.]

[The use of force to protect a third person is not justifiable if the defendant reasonably believes that the third person is resisting force used by the occupier or possessor of property or by another person on his/her behalf, where the third person knows that the person using force is doing so under a claim of right to protect the property, but is justifiable if the defendant reasonably believes that the third person [is a public officer acting in the performance of his/her duties or a person lawfully assisting him/her therein] [is a person making or assisting in a lawful arrest] [believes that such force is necessary to protect himself/herself against death or serious bodily injury.]

Section 4 – Confinement

[The use of confinement as force to protect a third person 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.]

Section 5 – Definitions

“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] [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.

Section 6 – Defense Not Available

[Defense of others 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 to protect a third person against another 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 to protect a third person against another person.]