FAQ: How Does Self-Defense Work in Criminal Cases?

Sometimes, in criminal cases, you’ll hear of defendants claiming self-defense as the reason they took a particular action. Sometimes, courts will rule that those actions, even if they were violent, or ended in the death of another person, were acceptable since they were made in an effort to defend oneself. Which brings up the very good question “how does claiming self-defense work in a criminal case?” I’ll explain this here.

Self-defense in a criminal case is an “affirmative defense”

The most important thing to know about claiming self-defense in a criminal case is that it is an “affirmative defense.” This means that you have to show that you were legally justified in using self-defense and, if you do, it is a complete defense to the crime.

For example, let’s say I punch my hypothetical next-door neighbor named Mark, and I get charged with a misdemeanor third-degree assault. If I’m able to show that he was coming at me with his fists in the air as if he was going to punch me, then I can claim self-defense. I don’t even have to prove that he was going to punch me; I just need credible evidence that Mark was threatening me in order to raise the affirmative defense of acting in self-defense.

Obviously, there’s more to it than just that, but essentially, at trial, what you’re trying to do is get enough credible evidence—and it only needs to be a modicum of credible evidence—that the defendant acted in self-defense. When we go to trial, we’re wanting to get the judge to grant a self-defense jury instruction which essentially adds an entire extra element to the crimes they are charged with.

I see this all the time in domestic violence cases. Someone will be charged with third-degree misdemeanor assault, and charges say: “So-and-so punched such-and-such person without legal justification.” The prosecutors are saying that my client had no justification for their actions and that the act was not in self-defense. If we’re able to get the jury instruction, it requires the prosecution to not just prove all those elements beyond a reasonable doubt, but they now ALSO have to prove beyond a reasonable doubt that my client’s actions were not in self-defense. This is a huge endeavor.

Often, a client will tell me: “My spouse was coming at me. They were angry, and out of control, and kept punching me and punching me. I finally put them in a headlock to try to get them to stop hitting me.” Here, the client will be charged with strangulation. So, in the trial, we wouldn’t necessarily try to deny that they took the action; we’re saying they were doing it in self-defense.

Self-Defense Must Be Reasonable

Now the key to all this is that self-defense must be reasonable. Using my hypothetical example of getting in a fistfight with my neighbor, Mark, let’s say he’s coming at me with just his fists. Unless there is something significant that would make me fear that his fists would cause serious bodily injury or death, I can’t take out my gun and shoot him.

Using deadly force when I don’t actually fear for my life would be unreasonable. I can only use deadly force when a “reasonable person” would believe that deadly force was necessary in order to save myself.

Some other affirmative defenses are the defense of property and the defense of others.

Self-Defense Includes Defense of Property

While you can claim self-defense while defending your property, you can’t use deadly force to protect property with very few exceptions. For example, if you drop by your workplace late at night, and you see a masked man smashing your computer with a baseball bat, you could beat him up to make him stop, but you likely can’t shoot him.

An exception here would be if you’re experiencing an active burglary and the burglars also present a potential risk to your life, you may be able to claim self-defense, but the details are important.

If you interrupt an active burglary on your property and the burglars get in their car and start driving away, you can’t shoot at their car as they leave. That’s not self-defense. However, if the burglars see you and start driving their car toward you as if they’re going to run you over, then you could potentially shoot at them and that could be legitimately called self-defense.

Much has been made of the “make my day” law, but I caution anyone who feels justified in shooting people on their property to ensure they know what they can and cannot do with their firearm before doing so.

Self-Defense Includes Defense of Others

For the most part, you are able to defend others the same as you are able to defend yourself. The keys are whether a reasonable person in your situation would perceive the threat as you do and also that your physical response to that perceived threat is also reasonable. Let’s say we’re still looking at an active burglary at your office, but this time it’s happening during the daytime. If you have a secretary who works at your front desk, and you think the burglars are going to cause her serious bodily injury or potentially kill her, you can use deadly force to protect her even if your own life isn’t in danger.

Make no mistake, as a general rule, it is best not to shoot people if you can avoid it. You may eventually be acquitted of criminal charges, but you may not be. Even if you are, the costs, both economic and emotional, are extreme.

The Affirmative Defense for Self-Defense Is Not Available at Preliminary Hearings

Here’s one of the weird caveats about self-defense. Normally, in more serious cases like class 1, 2, or 3 felonies, crimes of violence, or any felony if you are stuck in custody, you’ll get a preliminary hearing (or PH) to determine if there’s enough evidence to go forward. The thing about preliminary hearings, though, is that affirmative defenses are not available to the defense.

So, let’s say I’ve got a preliminary hearing because I’m in custody after I broke (my neighbor) Mark’s nose. That is second-degree assault because I’ve broken a bone. I’m eligible for a preliminary hearing because I’m in custody. Even if I have evidence for my claim that Mark was coming at me swinging his fists, I don’t get to use that at the preliminary hearing. The only question at the preliminary hearing is whether there is probable cause for the charge to exist.

So, again, with an affirmative defense, my position would not necessarily be “I didn’t break Mark’s nose.” It would likely be “Yes, I did break his nose. We’re not saying it didn’t happen. But let me show you my affirmative defense.”

This is frustrating from the defendant’s perspective because I’ll be sitting in custody, thinking “Come on! Mark was coming at me and threatening me with violence. I was just acting in self-defense.” We will be able to use that during negotiations with the prosecution and certainly during trial if necessary, but we don’t get to use it to win a preliminary hearing.