CORE CRIMINAL LAW SUBJECTS: Defenses: Self-Defense

2008 (September Term)

United States v. Yanger, 67 M.J. 56 (the elements of self-defense in a situation of non-aggravated assault require that the accused apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on him, and believed that the force that he used was necessary for protection against bodily harm, provided that the force used by him was less than force reasonably likely to produce death or grievous bodily harm).


2007

United States v. Lewis, 65 M.J. 85 (self-defense is considered a special defense, because although not denying that the accused committed the objective acts constituting the offense charged, self-defense denies, wholly or partially, criminal responsibility for those acts). 

 

(under RCM 916(e)(4), the right to self-defense is lost if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to an apprehension that the accused was about to suffer death or grievous bodily harm, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred; while RCM 916(e)(4) sets out a duty to withdraw under certain circumstances in order to avail oneself of the defense of self-defense, it does not address either escalation in general or the specific situation in which the original aggressor or someone engaged in mutual combat is not able to withdraw in good faith; the Rule’s silence regarding an inability to withdraw creates an ambiguity). 

 

(under common law self-defense principles, even a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict). 

 

(a mutual combatant can regain the right of self-defense when the opposing party escalates the conflict and when he is incapable of withdrawing in good faith, as long as he responds in a manner proportionate to the threat faced; RCM 916(e)(4) does not require the absurd result of requiring a mutual combatant or even an initial aggressor to withdraw when he is physically incapable of doing so). 

 

(in this case, the self-defense instruction given was incomplete where the military judge erred in not instructing the members that a mutual combatant could regain the right to self-defense when the opposing party escalated the conflict and when he was incapable of withdrawing in good faith). 

 

(military judge’s failure to give complete and correct self-defense instruction created a constitutional error).


2006

 

United States v. Dearing, 63 M.J. 478 (an initial aggressor is still entitled to use deadly force in his own defense, just as he would be if he withdrew completely from combat and was then attacked by his opponent, in instances where the adversary escalates the level of conflict).


United States v. Dobson, 63 M.J. 1 (it is a defense to a homicide that the accused: (A) apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and (B) believed that the force the accused used was necessary for protection against death or grievous bodily harm; the first element, under subparagraph (A), has an objective component, involving the perception of a reasonable person under the circumstances; the second element, under subparagraph (B), is wholly subjective, involving the personal belief of the accused, even if not objectively reasonable; although mental health evaluations may be relevant to both elements of self-defense, such evaluations may have particular import with respect to the second element, which involves the personal, subjective perceptions of the accused). 

 

(the military judge’s error in precluding appellant from introducing corroborating evidence when her credibility was attacked regarding the state-of-mind element of her claim of self-defense to premeditated murder was not a constitutional error that was prejudicial unless harmless beyond a reasonable doubt; appellant had an extensive opportunity to present a state-of-mind defense).

 

(the military judge’s error in excluding the proposed testimony of witnesses that the victim threatened to kill appellant on two occasions which was offered to corroborate appellant’s claim of self-defense after an attack on her credibility during cross-examination was not prejudicial on the issue of self-defense in court-martial of appellant for premeditated murder, considering that the prosecution’s case refuting the self-defense claim was strong, the defense’s case was weak, and the quality and materiality of the excluded evidence was of diminished value on the issue of self-defense).


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