Self-defense in Criminal Cases
| Jurisdiction | Colorado,United States |
| Citation | Vol. 7 No. 8 Pg. 1322 |
| Pages | 1322 |
| Publication year | 1978 |
1978, August, Pg. 1322. Self-Defense in Criminal Cases
Jonathan L. Olom, Denver, is an attorney specializing in criminal law and is associated with Stanley Marks.
Self-defense is rooted deeply in the common law, and finds its origins in the days in which homicide was considered a matter of private vengeance. Nonetheless, those who acted in self-defense would still be legally liable to compensate the family of the victim, and it was not until the mid-nineteenth century that a person who committed homicide in self-defense was excused from both legal and financial responsibility. Although justifiable homicide was declared to be free from criminal fault in 1828, it was not until 1861 that those who acted in self-defense were absolved of financial responsibility.
The elimination of the financial penalty marked the recognition that homicide was not a private matter, but a public wrong which should be dealt with by the public system of laws. As the common law developed in England, the burden of proof that an act was justified by self-defense was placed upon the accused, and he was put to the task of proving, by a preponderance of the evidence, that he was indeed acting in self-defense. This minority rule of the common law is still accepted in a few jurisdictions in the United States.(fn1) However, most jurisdictions, including Colorado, have rejected the common law. By statute and rule, these states now place the burden upon the prosecution to demonstrate, beyond a reasonable doubt, that no justification for the act existed.(fn2)
The justifiable use of physical force in the defense of persons or property is now largely defined by statute in Colorado.(fn3) The general law of self-defense in this jurisdiction owes a tentative debt to the common law, but most of the ancient principles have been superceded by the statutes. Evidentiary rules pertaining to presentation of a claim of self-defense are still largely grounded in the common law. Self-defense is specifically designated as an affirmative defense.(fn4)
Both the criminal lawyer and the general practitioner should be familiar with the law of self-defense. Practitioners handling everything from municipal ordinance violations to first degree murder cases will invariably encounter claims of self-defense, and a greater percentage of these cases eventually go to trial. It is ultimately up to the jury to determine whether or not the accused acted reasonably under the circumstances.
A claim of self-defense may be interposed in the traditional first degree murder
and assault cases, but the state of the law with respect to other offenses is not at all clear. Self-defense may not be logically compatible with anything other than an intentional crime, and the breakdown of murder and assault into several degrees of culpability with various mental states or mens rea has spawned some confusion.
It is clear that self-defense is a valid defense to first or second degree murder.(fn5) However, when an element of the crime charged is that the defendant acted in a reckless or criminally negligent manner, it appears that self-defense would be inconsistent with the crime charged. This is what the Colorado Supreme Court concluded in People v. Fink,(fn6) holding that self-defense would not be available to a defendant charged with reckless manslaughter(fn7) or criminally negligent homicide.
Although self-defense may not be raised as an affirmative defense in such cases, evidence that the defendant acted in self-defense may be presented for the jury to consider in determining whether the defendant was acting recklessly or in a criminally negligent manner. Therefore, although the defendant is stripped of the affirmative defense, he may nonetheless present such evidence to negate an element of the offense. This is most relevant in a prosecution under subsection (b) of the criminally negligent homicide statute, which imposes criminal liability upon one who kills another under a good faith but unreasonable belief that good grounds for self-defense existed.
The effect of this statute is to expand the concept of self-defense to reduce substantially the criminal culpability in a homicide case in which the defendant harbors a good faith but unreasonable belief that grounds for justification exist.(fn9) Thus, the jury may reject the self-defense argument, but nonetheless conclude that the defendant held an un-reasonable good faith belief that sufficient justification existed to use deadly force. The practical effect of this is to reduce the offense from a class 1 or 2 felony to a class 1 misdemeanor.
The same rationale should apply to reckless second or third degree assault.(fn10) Particularly with a third degree assault case, defense counsel should request a bill of particulars(fn11) so that he may be apprised of whether the prosecution is charging an intentional, knowing or reckless assault.
The principles of self-defense should apply equally well to a charge of menacing,(fn12) but reckless endangerment(fn13) should be analyzed in light of the Fink case.
The presentation of the defendant's case begins with the voir dire of the jury.
In trying a self-defense case in any court, counsel must begin by making the jurors comfortable with the idea that...
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