SELF-DEFENSE
1. Threat of imminent and unlawful bodily harm
Imminent:
Most: no self-defense instruction when killed a sleeping person, even when battered instruction
because not immintent at time of killing
o Don’t want to relax standards of imminent, becomes similar to capital punishment where
victim is carrying out punishment into her own hands;
2. unlawful bodily harm- Initial aggressor is partially blameworthy, then responsive use of force not unlawful
1. problem with escalating force (initially nonlethal aggression - responds with deadly force - ?)
• some, CL: if initial aggressor, then forfeits self-defense unless clearly retreats (Peterson
• most: MPC 3.042b: - initial aggressor doesn’t forfeit self-defense principle unless A entered
encounter with purpose of causing death or GBH, because when responds with legal force, that
excessive force itself is unlawful as well.
2. Belief
• Most: require objective belief (RP in actor’s circumstances given what they’ve been through,
no fear, temperament, neuroticism, timidity or internal belies – bc want people to keep as
strong as they can be in these situaitions), but allow imperfect self defense that allows
voluntary manslaughter rather than murder (person is initial aggressor and fight escalates,
unreasonably perceive a need for force, if respond with disproportional force in self defense)
o Common law- But if death doesn’t result, and person is initial aggressor and fight escalates,
unreasonably perceive a need for force, if respond with disproportional force in self defense =
responsible for that crime
 Only imperfect self defense for death because we know that it could be committed
negligent or recklessly.
o Considerations:
 Allows the jury to consider history & experiences, because it is RP that takes into account
for past experiences. (Goetz) – ultimately not convicted of attempted murder.
 Allows the jury to consider that she’s “elderly” and “frail”
 However, doesn’t allow biases into account (fear of blacks in subways).
 Expert testimony admissable to show honest believe in imminent danger of death &
reasonableness of belief in immediate danger of serious bodily injury
 Can consider history of battery, but not allowed to give a jury instruction of a
reasonable battered woman standard).
o
o NY – “reasonable” still means that it’s an objective standard (while NY is MPC approach,
different on felony murder and eMED approach).
 Allows use of force when he reasonasbly believes that such person is committing/
attempting to comit a kidnappingl, forcible rape, forcible sodomy or robbeyr
o MA only allows last approach – if respond with disproportional force in self defense but have
other wise right to self defense, then voluntary manslaughter rather than murder
• Some, MPC: – only require actor’s subjective belief of imminent trheat of gbh (3.04: ) but if
negligent or reckless in forming that belief, then can be committed for crime that has negligence/
reckless for that MR (MPC same approach in mistake of fact: treat as element of MR if you’re
mistaken about something, you can be guilty under MPC of a crime against negligence, but you
can’t be guilty of a higher crime).
o Subjective problem when trying to protect racism, but should also consider BWS
2. force must be necessary
Expert testimony can be used to show that the force was necessary
o Takes into account history of bws but not allowed to consider how a reasonable battered
women would behave

Because hard to understand for jury

BWS standard is too general, when everyone has different indivdiaul experiences

Also it is jury’s job to find as a factual inquiry whether there was a bws in the first
place
o
3. can only respond to force with proportional force
 If jurisdiction follows emed, then can include expert testimony
 If jurisdiction follows heat of passion bojective, then could exclude expert testimony
subjective standard for bws v Goetz: difference in history of experience; fear of single specific
person v fear of blacks in general
NY 35.15: may use physical force only when reasonably believes to be use or imminent use of
lunlawful physical force by such other person. (2) can use deadly force when
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