Nebraska Jury Instructions, Criminal
Chapter 7: Affirmative Defenses
7.1 Self Defense (No Deadly Force)
The defendant acted in self defense if:
(1) (here insert victim’s name) ((used, threatened, used or threatened) force against the defendant); and
(2) under the circumstances as they existed at the time, the defendant reasonably believed that (the force (he, she) used against) (here insert victim’s name) was immediately necessary to protect the defendant against (any such force (used, threatened, used or threatened)) by (here insert victim’s name).
The fact that the defendant may have been wrong in estimating the danger does not matter so long as there was a reasonable basis for what (he, she) believed and (he, she) acted reasonably in response to that belief.
COMMENT
NJI2d Crim. 7.1 is derived from NJI 14.33 (Supp. 1975) and Neb. Rev. Stat. §§ 28-1408 to 28-1414 (Reissue 2008).
NJI2d Crim. 7.1 is limited to the defense of self defense when no deadly force is employed. NJI2d Crim. 7.2 [SELF DEFENSE (Issue As To Deadly Force)], 7.3 (1992)[SELF DEFENSE (Deadly Force)], 7.4 (DEFENSE OF ANOTHER), and 7.5 (DEFENSE OF PROPERTY) should be used when appropriate. It is anticipated that NJI2d Crim. 7.1 and 7.2 will be the most frequently used of the justification by force defenses.
NJI2d Crim. 7.1 (as are all the justification by force defenses) is drafted in the affirmative as a definition of the concept of self defense even though, whenever self defense is at issue, the last element of the elements instruction will be “that the defendant did not act in self defense.” State v. Warren, 9 Neb.App. 60, 608 N.W.2d 617 (2000). This formulation was used simply to aid jury comprehension: drafting for what is not self defense produced an instruction with so many negatives as to be incomprehensible.
In every case in which NJI2d Crim. 7.1 is given, the jury already will have been instructed that all elements (including negation of a self defense claim) are to be proved by the state; that admonition consequently is not repeated in NJI2d Crim. 7.1. In cases involving an insanity defense, however, there may at times be a concern that confusion could result unless the jury is reminded of the state’s burden. In an appropriate case, then, the following language might be added as the final paragraph of NJI2d Crim. 7.1:
“The defendant is not required to prove that (he, she) acted in self defense. It is up to the state to prove that (he, she) did not.”
A defense of self defense is available only if there is a reasonable ground for a defendant’s belief that force is necessary; a defendant therefore is not entitled to a self defense instruction unless there is “sufficient evidence” to support the defense. See, e.g., State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009); State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986); State v. Canby, 217 Neb. 461, 348 N.W.2d 900 (1984); State v. Cowan, 204 Neb. 708, 285 N.W.2d 113 (1979). Because, moreover, the defense requires a purposeful use of force by a defendant, the defense is unavailable where a defendant’s theory of the case ( e.g., denial that he used force or inflicted injury) excludes a showing of purposeful use. State v. Brown, 220 Neb. 849, 374 N.W.2d 28 (1985). The defense is unavailable even if purposeful use is in the case through the victim’s description of the crime. Id. To raise the defense of self defense a defendant cannot have been the aggressor in the unlawful use of force. State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
The defense of self defense is available only when, among other requirements, the force employed by the defendant is in response to unlawful force employed against her. Unlawful force is defined by statute to mean:
[F]orce, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status; not amounting to a privilege to use the force.
Neb.Rev.Stat. § 28-1406(1) (Reissue 2008).
There are instances in law where the law permits a person to use force that otherwise would constitute unlawful force. These include the use of force by persons having a special responsibility for care or discipline; see Neb.Rev.Stat. § 28-1413 (Reissue 2008); and the use of force to resist an arrest; Neb.Rev.Stat. § 28-904 (Reissue 2008) (where officer does not identify herself). See also Neb.Rev.Stat. e.g., § 28-1408 (Reissue 2008). For these and other such situations NJI2d Crim. 7.1 may not be employed. Instead, an instruction must be provided that is tailored to the particular facts of the case.
The brackets around the language regarding the victim’s use or threat of force are intended to direct that, wherever possible, the judge substitute for this general language a particular description of just what force it is that the victim is alleged to have used. If the defendant claims that the victim threatened to hit her, and there is no contested issue regarding whether the victim made the threat, then the instruction might say
“The defendant acted in self defense if the defendant reasonably believed that the force (he, she) used against (here insert victim’s name) was immediately necessary to protect the defendant against being struck by (here insert victim’s name).”
If, on the other hand, there is a factual dispute regarding whether the victim made the threat, then the instruction might say
“The defendant acted in self defense if:
“(1) (here insert victim’s name) threatened to strike the defendant; and
“(2) the defendant reasonably believed that the force (he, she) used against (here insert victim’s name) was immediately necessary to protect the defendant against any such threat by (here insert victim’s name).”
It is possible that the defendant’s use of force may have been justifiable but the victim was someone other than the person who provoked the use of force. See State v. Duis, 207 Neb. 851, 855-56, 301 N.W.2d 587, 590 (1981). In this event, the following language may be appropriate:
“If you decide that the defendant acted in self defense in defending (himself, herself) from (here insert name of person using or threatening unlawful force) then you must next decide whether (he, she) should be excused from the injury (he, she) caused to (here insert name of third person injured). This depends on whether the defendant was reckless in injuring (here insert name of third person).
“Reckless means that the defendant disregarded a substantial and unjustifiable risk that (here insert name of the third person) would be injured in circumstances in which disregarding the risk was a gross deviation from what a reasonable, law-abiding person would have done.
“If you decide that the defendant was reckless in (his, her) use of force, then you should find (him, her) guilty of (here insert crime for which injury caused recklessly is sufficient).”
In Duis, supra, the Court suggested that a jury should be told that “if the defendant was justified in using force toward (the person who used force or a threat of force), he was justified in the force employed, which mistakenly struck the actual victim.” 207 Neb. at 856, 301 N.W.2d at 590. The statute expressly provides that the jury be instructed that the defendant, although not guilty of a crime requiring intent, could be found guilty of a crime where recklessness (or negligence) is sufficient. Neb.Rev.Stat. § 28-1414(3) (Reissue 2008): “When the actor is justified under sections 28-1408 to 28-1413 [justification by force sections] in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.”
The definition of “reckless” in the above suggested instruction is taken from NJI2d Crim. 4.0: “Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Neb.Rev.Stat. § 28-109(19) (Reissue 2008).
If the jury is to be instructed on whether the defendant was negligent in causing injury to a third person the above suggested instruction should serve as a guide. A judge will have to resolve what definition of negligence is appropriate.
The Nebraska statutory language for the justification defenses does not expressly require that a defendant’s belief that he was acting in defense of self (or another or property) must be a reasonable belief. The Nebraska Supreme Court has interpreted the statute to require a reasonable belief. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009); State v. Cowan, 204 Neb. 708, 285 N.W.2d 113 (1979); State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978); State v. Goodseal, 186 Neb. 359, 183 N.W.2d 258 (1971), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 82 (1971).
In the routine case, where the victim was also the alleged aggressor and where the mental state element of the crime is specific intent, Neb.Rev.Stat. § 28-1414 (Reissue 2008) will have no effect because self defense already requires that a defendant’s belief in the use of force be honest and reasonable. That being true, a jury that finds a defendant’s belief honest and reasonable necessarily would have to conclude that the defendant was not reckless or negligent in forming that belief. For crimes with a mental state element of recklessness or negligence then, it appears that self defense is not a defense.
AUTHORITIES
Neb.Rev.Stat. §§ 28-1408 to 28-1417 (Reissue 2008 and Cum. Supp. 2014); State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009); State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986); State v. Brown, 220 Neb. 849, 374 N.W.2d 28 (1985); State v. Canby, 217 Neb. 461, 348 N.W.2d 900 (1984); State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983); State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981); State v. Cowan, 204 Neb. 708, 285 N.W.2d 113 (1979); State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978); State v. Ralls, 192 Neb. 621, 223 N.W.2d 432 (1974); State v. Wingate, 191 Neb. 388, 215 N.W.2d 90 (1974); State v. Goodseal, 186 Neb. 359, 183 N.W.2d 258 (1971), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 82 (1971); Schluter v. State, 153 Neb. 317, 44 N.W.2d 588 (1950); Barr v. State, 45 Neb. 458, 63 N.W. 856 (1895); Housh v. State, 43 Neb. 163, 61 N.W. 571 (1895).
Research References
West’s Key Number Digest
Assault and Battery 96(3); Homicide 1471
Legal Encyclopedias
C.J.S., Assault and Battery §§ 124, 126
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