Nebraska Jury Instructions, Criminal
Chapter 7: Affirmative Defenses
7.2 Self Defense (Issue as to Deadly Force)
If (the force used by the defendant) was not deadly force, then 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 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).
If (the force used) was deadly force, then the defendant acted in self defense if:
(1) (here insert victim’s name) (here insert appropriate language such as threatened, attempted, caused, threatened or caused) (death, serious bodily harm, kidnapping, sexual intercourse compelled by force or threat of force); and
(2) the defendant did not provoke any such (use of force) against (him, her) with the intent of (using deadly force) in response; and
(3) under the circumstances as they existed at the time, the defendant reasonably believed that (his, her) (use of deadly force) was immediately necessary to protect (him, her) against (death, serious bodily harm, kidnapping, sexual intercourse compelled by force or threat of force) [; and
(4) before (using deadly force) the defendant either tried to get away or did not try because (he, she) reasonably did not believe (he, she) could do so in complete safety].
Deadly force means force used with the intent to cause death or serious bodily harm or force used with the knowledge that its use would create a substantial risk of death or serious bodily harm.
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
The defense of self defense in NJI2d Crim. 7.2 is to be employed in any case where there is an issue whether the defendant used deadly force. When 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).
Deadly force is defined by statute to be force used by a defendant “with the purpose” of causing death or serious bodily harm or with knowledge of the likelihood of such consequences. Neb.Rev.Stat. § 28-1406(3) (Reissue 2008).
A defendant may use deadly force to protect himself against death, serious bodily injury, kidnapping, or forced sexual intercourse. Neb.Rev.Stat. § 28-1409(4) (Reissue 2008). NJI2d Crim. 7.2 simply employs a parenthetical in paragraphs (1), (2), and (3) of that part of 7.2 in which are set forth the elements of the defense if deadly force was employed. If there is any doubt or ambiguity concerning use of any of these terms, then the judge may simply describe what the victim is alleged to have done. For example, numbered paragraph (1) might say:
“(1) Victim A threatened to forcibly make the defendant a prisoner; or”
If there is a fact question regarding the defendant’s use of deadly force then the deadly force part of the instruction may not be given unless the judge decides that the defendant’s rendition of the facts suggests that Neb.Rev.Stat. § 28-1409(4) (Reissue 2008) is met. If not met, then NJI2d Crim. 7.2 needs to be adjusted to reflect the fact that if the force used by the defendant was not deadly force, then she may have a self defense defense, but if she used deadly force, then she has no such defense. Appropriate language here might be:
“The defendant acted in self defense if:
“(1) (here insert victim’s name) ((used, threatened, or 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 used against (here insert victim’s name) was immediately necessary to protect the defendant against (any such force (used, threatened)) by (here insert victim’s name); and
“(3) the defendant did not use deadly force.
“Deadly force means force used with the intent to cause death or serious bodily harm or force used with the knowledge that its use creates a substantial risk of death or serious bodily harm.
“The fact that the defendant may have been wrong in estimating the danger does not matter so long as (1) the defendant did not use deadly force; and (2) there was a reasonable basis for what (he, she) believed; and (3) (he, she) acted reasonably in response to that belief.”
The parentheses around “use of force” and “use of deadly force” throughout NJI2d Crim. 7.2 are intended to suggest that an actual description of the defendant’s acts (plus language adjustment where necessary) may be preferred to the general phrase. See Comment to NJI2d Crim. 7.3 for an example of specific phrasing in a situation in which deadly force clearly was used.
The bracketed language of paragraph (4) of NJI2d Crim. 7.2 governing the duty to retreat before using deadly force should be given only when the defendant was not at home or work as there is no duty to retreat from home or work (unless the fight was with another employee). Neb.Rev.Stat. § 28-1409(4) (Reissue 2008); State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986). The privilege of nonretreat is applicable in situations involving altercations between cohabitants. State v. White, 20 Neb. App. 116, 819 N.W.2d 473 (2012), affirmed 285 Neb. 951, 830 N.W.2d 215 (2013).
AUTHORITIES
Neb.Rev.Stat. § 28-1409(4) (Reissue 2008); State v. White, 20 Neb.App. 116, 819 N.W.2d 473 (2012), affirmed 285 Neb. 951, 830 N.W.2d 215 (2013); State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).
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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