Nebraska Jury Instructions, Criminal
Chapter 7: Affirmative Defenses
7.4 Defense of Another
The defendant acted in defense of another person if:
(1) the defendant reasonably believed that (here insert victim’s name) ((used, threatened, used or threatened) force) against (here insert name of person the defendant claims to have protected); and
(2) under the circumstances as they existed at the time, the defendant reasonably believed that (the force the defendant used against) (here insert victim’s name) was immediately necessary to protect (here insert name of person the defendant claims to have protected) 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 to (here insert name of person the defendant claims to have protected) does not matter so long as there was a reasonable basis for what the defendant believed and (he, she) acted reasonably in response to that belief.
COMMENT
Refer to Comments to NJI2d Crim. 7.1 [SELF DEFENSE (No Deadly Force)], 7.2 (1992)[SELF DEFENSE (Issue as to Deadly Force)], and 7.3 [SELF DEFENSE (Deadly Force)]. As with the other justification by force instructions, NJI2d Crim. 7.4 does not instruct the jury that the force defended against must be unlawful force. See the Comment to NJI2d Crim. 7.1. In claims of defense of another, a question as to the unlawfulness of the force used on the third person (and the reasonableness of the defendant’s belief that the force was unlawful) may be a more frequent question than in self-defense cases. When defense of another is at issue, the last element of the elements instruction will be “that the defendant did not act in defense of another.” Cf., State v. Warren, 9 Neb.App. 60, 608 N.W.2d 617 (2000).
The language of NJI2d Crim. 7.4 accommodates the defense of another when there is no allegation that a defendant used deadly force. If the use of deadly force is alleged, then the instruction should track NJI2d Crim. 7.2 or 7.3 consistent with the language adjustments reflected in NJI2d Crim. 7.4.
AUTHORITIES
Refer to authorities listed for NJI2d Crim. 7.1 to 7.3.
Research References
West’s Key Number Digest
Assault and Battery 92(2); Homicide 1489
Legal Encyclopedias
C.J.S., Assault and Battery § 122
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