Wisconsin Jury Instruction Criminal (WJIC)

800 PRIVILEGE:  SELF-DEFENSE:  FORCE LESS THAN THAT LIKELY TO CAUSE DEATH OR GREAT BODILY HARM — § 939.48

[INSERT THE FOLLOWING AFTER THE ELEMENTS OF THE CRIME ARE DEFINED BUT BEFORE THE CONCLUDING PARAGRAPHS.]

Self-Defense

Self-defense is an issue in this case.  The law of self-defense allows the defendant to threaten or intentionally use force against another only if:

  • the defendant believed that there was an actual or imminent unlawful interference[1] with the defendant’s person; and,
  • the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference; and
  • the defendant’s beliefs were reasonable.

Determining Whether Beliefs Were Reasonable

A belief may be reasonable even though mistaken.[2]  In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.[3]  The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of the defendant’s acts and not from the viewpoint of the jury now.

[IF RETREAT IS AN ISSUE, ADD APPROPRIATE INSTRUCTION HERE – SEE WIS JI‑CRIMINAL 810.]

[IF THERE IS EVIDENCE THAT THE DEFENDANT PROVOKED THE ATTACK, ADD APPROPRIATE INSTRUCTION HERE – SEE WIS JI‑CRIMINAL 815.]

State’s Burden of Proof

The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self-defense.

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all      elements of             [4] have been proved and that the defendant did not act lawfully in self-defense, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.

COMMENT

Wis JI‑Criminal 800 was originally published in 1962 and revised in 1994.  This revision was approved by the Committee in June 2000 and involved adoption of a new format, nonsubstantive changes to the text, and updating of the comment.

This instruction is intended for use with crimes involving the intentional causing of bodily harm. For cases involving criminal recklessness or criminal negligence, see Wis JI‑Criminal 801. For cases involving the intentional use of force intended or likely to cause death or great bodily harm, see Wis JI‑Criminal 805.

The instructions for homicide offenses include models for cases involving self‑defense. See Wis JI‑Criminal 1014, 1016, 1017, and 1052.

The 1994 revision of this instruction changed its format to allow integrating the description of self‑defense with the instruction for the crime charged. The Committee concluded that this provides a clearer statement of the facts necessary to constitute guilt in a case when self‑defense is an issue. This kind of approach was suggested in State v. Staples, 99 Wis.2d 364, 299 N.W.2d 270 (Ct. App. 1980).

For examples integrating the self‑defense instruction with instructions for battery, see Wis JI‑Criminal 1220A ‑ 1225A.

[1].    For purposes of self‑defense, “unlawful” means “either tortious or expressly prohibited by criminal law or both.”  § 939.48(6).  Further instruction on what constitutes “unlawful interference” in the context of the facts of a particular case may be desirable.

The word “unlawful” also appears in  sub. (2) of § 939.48, which provides that a “person who engages in unlawful conduct of a type likely to provoke others . . .” loses the right to claim the privilege of self-defense.  [See Wis JI-Criminal 815.]  In State v. Bougneit, 97 Wis.2d 687, 294 N.W.2d 675 (Ct. App. 1980), the court held that engaging in what would be considered disorderly conduct under § 947.01 could constitute “unlawful conduct” for the purposes of § 939.48(2).

The “unlawful” component of “unlawful interference” is just one part of the predicate for invoking the privilege of self-defense.  As stated in the instruction, the defendant must have believed “that there was an actual or imminent unlawful interference with the defendant’s person and [must have] believed the amount of force he used or threatened to use was necessary to prevent or terminate the interference.”

[2].    This treatment of “reasonably believes” is intended to be consistent with the definition provided in § 939.22(32).

[3].    The phrase “in the defendant’s position under the circumstances that existed at the time of the alleged offense” is intended to allow consideration of a broad range of circumstances that relate to the defendant’s situation. For example, with children (assuming they are old enough to be criminally charged), the standard relates to a reasonable person of like age, intelligence, and experience. Maichle v. Jonovic, 69 Wis.2d 622, 627‑28, 230 N.W.2d 789 (1975).

Another situation where the personal circumstances become important in defining the self‑defense standard is in a case involving a battered spouse. Wisconsin cases dealing with the subject have tended to use doctrines other than self‑defense in these cases. In State v. Hoyt, 21 Wis.2d 284, 128 N.W.2d 645 (1964), for example, the theory of defense related to “heat of passion, caused by reasonable and adequate provocation” rather than self‑defense. Likewise, in State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), provocation and not guilty by reason of mental disease were considered to be the relevant doctrines. However, some cases of this type may legitimately be considered under self‑defense rules:  the history of abuse between the spouses may be relevant to evaluating whether the defendant’s belief in the need to use force was reasonable. See, for example, State v. Gomaz, 141 Wis.2d 302, 414 N.W.2d 626 (1987).

[4].    In the two blanks provided, insert the number of elements that the crime has and the name of that crime, where the crime has a convenient short title. For example, for a case involving simple battery under § 940.19(1), the sentence would read as follows:  “. . . that all four elements of battery have been proved . . .”  See Wis JI‑Criminal 1220A. If the crime does not have a convenient short title, use “this offense” instead.  For example, for a case involving substantial battery under § 940.19(2), the sentence would read: “that both elements of this offense were proved, . . .”  See Wis JI‑Criminal 1222A.