Nebraska Jury Instructions, Criminal
Chapter 7: Affirmative Defenses
7.3 Self Defense (Deadly Force)
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].
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
Use of deadly force is justifiable only if the defendant had no duty to retreat or knew he could not retreat in complete safety. Neb.Rev.Stat. § 28-1409(4) (Reissue 2008); State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986); State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983). 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).
The parentheses around “deadly force” throughout NJI2d Crim. 7.3 are intended to suggest that an actual description of the defendant’s acts (plus language adjustments where necessary) may be preferred to the general phrase. If, for example, the defendant killed her victim, it would be clearer and simpler to say that throughout.
AUTHORITIES
State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986); State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).
Research References
West’s Key Number Digest
Assault and Battery 96(3); Homicide 1471
Legal Encyclopedias
C.J.S., Assault and Battery §§ 124, 126