Criminal lawyers always look for a defense.
In the case of any assault-type charge, the lawyer looks at self-defense. It is governed by statute and it has changed three times since 2006. If the lawyer thinks self-defense is viable he goes to the big red book, “Tennessee Pattern Jury Instructions – Criminal.” This book holds official jury instructions for all types of criminal cases.
This post is about criminal instruction “40.06(b).” It contains the words the judge will read to the jury before jury retires to deliberate.
If at trial evidence is introduced supporting self-defense, the burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense.
In general a person in a place where that person has a right to be may use or threaten force to the degree he reasonably believes the force is immediately necessary to protect against the bad actor’s use or attempted use of unlawful force. There is no duty to retreat.
Broken down, the elements of self-defense are:
- You are in a place you have a right to be
- You are not doing anything illegal
- You reasonably believe force is necessary to protect against the bad actor’s use or attempted use of force.
In determining whether your threat of force or use of force in defending yourself is was reasonable, the jury considers:
- The bad actor’s use or threat of force
- Previous threats
- The animosity of the bad actor as shown by previous acts or words
- Manner in which the parties are armed and their relative strengths and sizes.
Deadly force is justified if:
- You have a reasonable belief there is an imminent danger of serious bodily injury (or death) and,
- The danger was real, or honestly believed to be real
Even with deadly force there is no duty to retreat.
If you are in your residence, business or vehicle you are presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest when that force is used against another person who unlawfully and forcibly enters or has unlawfully and forcibly entered the home, business or vehicle and the person using force knew or had reason to believe that the bad actor entered unlawfully. This means the accused does do not necessarily have to testify that he feared serious bodily injury was imminent.
The Tennessee legislature defines residence broadly to include “curtilage.” Curtilage includes those areas surrounding a dwelling that is necessary, used for the family purposes and for those activities associated with the “sanctity of a person’s home.” (I just love that language, “sanctity of a person’s home.”) For example, a front stoop, or the walkways near a dwelling would be part of the curtilage. Of course this means that the accused benefits from the presumption that he reasonably feared imminent serious bodily injury.
At the end the judge reads these words to the jury:
“If from all the facts and circumstances you find the defendant acted in self-defense, or if you have a reasonable doubt as to whether the defendant acted in self-defense, you must find him not guilty.”
That can be a tough burden for the prosecutor – convincing twelve men and women to unanimously find beyond a reasonable doubt that the accused did not act in self-defense.
Other statutory definitions related to self-defense:
“Business” means a commercial enterprise or establishment owned by a person as all or part of such person’s livelihood, or is under the owner’s control or who is an employee or agent of the owner with responsibility for protecting persons and property and shall include the interior and exterior premises of such business.
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed for or capable of use by people.
“Enter” means an intrusion of any part of the body; or an intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.
“Imminent” means near at hand; on the point of happening.
“Serious bodily injury” means bodily injury that involves a substantial risk of death; protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement; or protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty or a broken bone of a child who is eight (8) twelve (12) years of age or less.
T.C.A. § 39-11-106
T.C.A. § 39-11-611
T.C.A. § 39-11-612