Montana Criminal Jury Instructions
CHAPTER 3: JUSTIFIABLE USE OF FORCE

3-110 Issues–Justifiable Use of Force as a Defense

The Defendant has offered evidence of justifiable use of force in this case You are to consider the following requirements of the law in determining whether the use of force claimed by Defendant was justified:

[1] The danger of harm to the Defendant must be a present one [and not threatened at a future time] [and not made by a person without the present ability to carry out the threat.];

[2] The force threatened against the Defendant must be unlawful;

[3] The Defendant must actually believe that the danger exists, that is, use of force is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;

[4] The Defendant’s belief, in each of the aspects described, must be reasonable even if it is mistaken.

[5] A person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat, or summon law enforcement assistance prior to using force.

Even if you determine the use of force by Defendant was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.

GIVEN: ______________________________

DISTRICT JUDGE

SOURCE: MCJI 3-110 (2022)

Plaintiff’s Proposed Instruction No._____ Defendant’s Proposed Instruction No._____

Given as Instruction No.______ Refused ______ Withdrawn______ By _______

[ Issues–Justifiable Use of Force as a Defense, No. 3-110, 2022 Source and Comment]

SOURCE: MCA § 45-3-115 (2021); MCA § 45-3-105 (2021); MCA § 45-3-110 (2021); MCA § 45-3-102 (2021); See also State v. Hagen, 311 Mont. 117, 53 P.3d 885 (2002); State v. Graves, 191 Mont. 81, 622 P.2d 203 (1981) (concurring opinion of Justice Sheehy); State v. Stone, 266 Mont. 345, 880 P.2d 1296 (1994); and State v. Archambault, 336 Mont. 6, 152 P.3d 698 (2007).

COMMENT: In State v. Stone, the Court suggested that the language in parenthesis for subsection #1 be given in those cases in which the Defendant is the initial aggressor so that the language is not inconsistent with the language of MCJI 3-104 or MCA § 45-3-105.

 

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