Massachusetts Superior Court Criminal Practice Jury Instructions (MCLE)
CHAPTER 5 INSTRUCTIONS ON DEFENSE AND JUSTIFICATION
§ 5.4 SELF DEFENSE AND DEFENSE OF ANOTHER

§ 5.4.4 Instructions on Specific Topics

(a) Victim’s Reputation, Past Violence, and Threats Known to Defendant

In considering whether or not the defendant actually believed that he or she was in immediate danger of death or serious bodily harm, and the reasonableness of that belief that he or she was in such danger, you may consider all the circumstances bearing on the defendant’s state of mind at the time. Moreover, in determining whether the defendant was reasonably in fear of death or serious bodily harm, you may consider any or all of the following:

• evidence of the deceased’s reputation as a violent or quarrelsome person, but only if that reputation was known to the defendant;

• evidence of other instances of the deceased’s violent conduct, but only if the defendant knew of such conduct; and

• evidence of threats of violence made by the deceased against the defendant, but again, only if the defendant was aware of such threats.

(b) Initial Aggressor–Victim’s Past Specific Acts of Violence Not Known to Defendant

Self-defense cannot be claimed by a defendant who was the first to use or threaten deadly force, because a defendant must have used or attempted to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force. A defendant who was the first to use or threaten deadly force, in order to claim self-defense, must withdraw in good faith from the conflict and announce to the person (or persons) he or she provoked his or her intention to withdraw and end the confrontation without the use of force or additional force.

For the purpose of determining who attacked whom first in the altercation, you may consider evidence of the deceased’s [and a third party acting together with the deceased’s] past violent conduct, whether or not the defendant knew of it.

(c) Mental Impairment or Voluntary Intoxication as Related to Self-Defense
[Where there is evidence the defendant at the time of the offense had a mental impairment or was under the influence of alcohol or drugs:]

You may consider the defendant’s mental condition at the time of the killing, including any credible evidence of mental impairment or the effect on the defendant of his/her consumption of alcohol or drugs, in determining whether the defendant actually believed that he/she was in immediate danger of serious bodily harm or death, but not in determining whether a reasonable person in those circumstances would have believed he or she was in immediate danger.

(d) Reasonable But Mistaken Belief of Danger
[Where the evidence raises an issue of mistaken belief:]

A person may use deadly force to defend him/herself even if he/she had a mistaken belief that he/she was in immediate danger of serious bodily harm or death, provided that the defendant’s mistaken belief was reasonable based on all of the circumstances presented in the case.

(e) “Castle Law”
[For self-defense cases not under the “castle law,” G.L. c. 278, § 8A:]

A person must retreat unless he or she reasonably believes that he or she cannot safely do so. A person need not place himself or herself in danger or use every means of escape short of death before resorting to self-defense.

[For self-defense cases under the “castle law,” G.L. c. 278, § 8A:]

A person who is lawfully residing in his/her house, apartment or some other dwelling is not required to retreat before using reasonable force against an unlawful intruder, if the resident reasonably believes that the intruder is about to kill or seriously injure him/her or another person lawfully in the dwelling, and also reasonably believes that such force is necessary to protect him/herself or the other person lawfully in the dwelling.

(f) Deadly or Nondeadly Force

Deadly or Nondeadly Force: Deadly force is force that is intended to or likely to cause death or serious bodily harm. Nondeadly force, by contrast, is force that is not intended to or likely to cause death or serious bodily harm. You must determine whether the Commonwealth has proved beyond a reasonable doubt that the defendant used deadly force. If you have a reasonable doubt whether the defendant used deadly force, but are convinced that he/she used some force, then you must consider whether the defendant used nondeadly force in self-defense. If the defendant had reasonable grounds to believe that he/she was in immediate danger of harm from which he/she could save him/herself only by using nondeadly force, and had availed him/herself of all reasonable means to avoid physical combat before resorting to nondeadly force, then the defendant had the right to use the nondeadly force reasonably necessary to avert the threatened harm, but he/she could use no more force than was reasonable and proper under the circumstances. You must consider the proportionality of the force used to the threat of immediate harm in assessing the reasonableness of nondeadly force.

 

[230609]