by George M. Lee, Esq.
Both sides rested their cases. And with all of the jurors leaning forward with focused anticipation, it fell to the moment that many lawyers live for: closing arguments. Each attorney then rose to the occasion, skillfully delivering closing arguments, laying out the evidence in a logical fashion, leading to an emotional crescendo, and an impassioned plea to the jury to “use your common sense” in delivering a fair and just verdict. And then the lawyers sat down. Those lawyers, and perhaps the defendant, lost in the residual emotion of the moment, may not have heard what was said next. The adrenalin was so strong, they could almost hear it swishing through their ears as the judge started to speak.
What the judge was doing, before the case officially went to the jury, however, was instructing the jury on the law. Following that law was something each juror swore they would do, applying the facts they found to the law of the case.
And what the jury in this case was going to be instructed, a case involving self defense, depended on whether it was a criminal or a civil case. But in either case, and irrespective of the burdens of proof about which the judge was about to instruct the jury, we hope the defense attorney’s argument was the same: My client was an armed, responsible citizen, acting reasonably under the circumstances, and we have proven that he is innocent of wrongdoing.
Most lay persons know that there is a difference between criminal and civil cases, and that each have different burdens of proof. In a criminal case, the prosecution has the burden of proving each element of the charged crime, beyond a reasonable doubt. People v. Cole, 33 Cal.4th 1158, 1208, 17 Cal.Rptr.3d 532, 573 (2004). It is enough for a jury in California to simply be instructed that a defendant in a criminal case is presumed to be innocent, and that to overcome that presumption, the prosecution must generally “prove a defendant guilty beyond a reasonable doubt.”1 The trial judge will further instruct the jury that “[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” (Jud. Council of Calif. Crim. Jury Instruction (CALCRIM) 220.)
In California, and elsewhere, it would be error for the trial court to give any instruction to the jury in a criminal case that shifts the burden of proof to the defendant, i.e., to prove that a homicide had been committed in self defense. See People v. Banks, 67 Cal.App.3d 379, 383-84, 137 Cal.Rptr. 652 (1976); Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892 (1975) (striking down a Maine statute which affirmatively shifted the burden of proof of justification for a homicide to the defendant.)
Thus, in a homicide case, where the defendant has asserted self-defense, or the defense of another, the jury will usually be instructed as follows:
The defendant is not guilty of murder if he was justified in killing someone in self defense [or the defense of another]. The defendant acted in lawful self defense [or the defense of another] if:
1. The defendant reasonably believed that he [or someone else] was in imminent danger of being killed or suffering great bodily injury;
2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
3. The defendant used no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 505 – Justifiable Homicide: Self-Defense or Defense of Another, Rev. 2012.)
In other words, the three primary parts to the defense, boiled to its essentials, are: (1) the reasonable belief of death or great bodily injury; (2) the reasonable belief in the necessary use of force; and (3) the use of force was no more than reasonably necessary under the circumstances.
In assisting the jury to decide what is and is not reasonable under these three core principles, the jury will further be instructed as follows:
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself [or someone else]. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
Finally, on the issue of the burden of proof, the jury in a criminal case would be instructed as follows:
The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.
In the trial of a non-homicide case, the instructions will be very similar, though not necessarily limited to the defense of the danger of being killed or suffering great bodily injury. The jury will likewise be instructed that: “The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self defense.” (CALCRIM 3470.)
The instructions may also be tailored to the specific facts of the case, including differing charges other than homicide (such as attempted homicide). Depending upon the circumstances, as further examples, and if the instructions are supported by evidence, the jury may also be instructed regarding any evidence of prior threats, as follows:
If you find that the decedent threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.
If you find that the defendant knew that the decedent had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.
Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.
If you find that the defendant received a threat from someone else that he reasonably associated with the decedent, you may consider that threat in deciding whether the defendant was justified in acting in self defense [or the defense of another].
In a “stand your ground” situation, if supported by state law (as it is in California), the jury would be instructed as follows:
A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death [or great bodily injury] has passed. This is so even if safety could have been achieved by retreating.
And finally, if there is a question about the meaning of “great bodily injury,” if not apparent, the jury would be told:
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
If the homicide occurs in the defendant’s home, the defendant may gain the benefit of a “castle doctrine” instruction, such as that existing under California law. The jury would specifically be instructed as follows:
The law presumes that the defendant reasonably feared imminent death or great bodily injury to himself [or to a member of (his/her) family or household] if:
1. An intruder unlawfully and forcibly entered [or was entering] the defendant’s home;
2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly entered [or was entering] the defendant’s home;
3. The intruder was not a member of the defendant’s household or family;
4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home. (CALCRIM No. 3477 - Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury (Pen. Code, § 198.5))
On the issue of burden on this instruction, the jury will be instructed as follows:
The People have the burden of overcoming this presumption. This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to himself [or to a member of his or her family or household] when he used force against the intruder. If the People have not met this burden, you must find the defendant reasonably feared death or injury to himself [or to a member of his or her family or household].
Civil Jury Instructions
In civil cases, of course, private parties are suing other private parties, usually seeking monetary damages, and the attendant burdens of proof are much less stringent. The civil jury instructions regarding self-defense matters are relatively straightforward. In California, under the Calif. Jud. Council Civil Jury Instructions (CACI), after being instructed what is required for the plaintiff to prove an assault or battery in a civil matter, the jury would be instructed:
Defendant claims that he is not responsible for plaintiff’s harm because he was acting in self defense [or the defense of another]. To succeed, the defendant must prove the following:
1. That defendant reasonably believed that plaintiff was going to harm him [or other person]; and
2. That defendant used only the amount of force that was reasonably necessary to protect himself [or other person]. [CACI No. 1304 – Affirmative Defense of Self Defense/Defense of Others, Rev. 2014 (emphasis added.)]
Most notably, and as emphasized, it would be the defense bearing the burden of proof that these two elements are met. That is because the defense of self defense, in response to a claim of assault is what is called an “affirmative defense.” And as an affirmative defense, it is the defendant’s burden to prove facts supporting the affirmative defense, by a preponderance of the evidence. Bartosh v. Banning, 251 Cal.App.2d 378, 386, 59 Cal.Rptr. 382 (1967). In other words, in order to avoid liability, the defendant must prove that he acted reasonably, in self defense, under these instructions.
In Either Case, Assume You Have The Burden Of Proof
So only in a civil case, do you bear the burden of proof on self defense, right? And even if you do bear the burden of proof in a civil case, the burden of proving the case by a preponderance of the evidence is slight, right? This may be true, but only in theory.
To demonstrate that theory, for example, a plaintiff’s lawyer in a civil case often will resort to an old-school visual graphic of the scales of justice with a feather on one side, to demonstrate how slight a preponderance of the evidence is. This was even done recently by a well-regarded plaintiff’s attorney in a high-profile sex discrimination case. Yet, as Judge Ralph Adam Fine observed in his book on winning trials: “The problem is, of course, that the burden of proof in a civil case comes into play only when the decision-maker is in total balance. That never happens.” (Fine, The How-To-Win Trial Manual, p. 62 (4th ed. 2008.)) And thus, in that same high-profile discrimination trial which ultimately resulted in a defense verdict, one of the jurors later remarked in a post-trial interview that the plaintiff simply didn’t have enough evidence: “It was her case to win, not theirs to lose,” he said.
Therefore, you must not rely on the relaxed burden of proof in a civil case simply to assume that your burden will easily be met. In a self-defense case in particular, as the primary party accused of causing harm to another, you and your attorney must fully commit to proving your innocence, offensively and not defensively, and without regard to the weight of that burden. And in fact, that way of thinking may not be limited to civil cases. As practitioners Gianna and Marcy advise, in their treatise on opening statements, maybe the burdens of proof exist in the world of legal theory, but in the real world, and practically speaking, “[j]urors come to the courtroom believing that both sides have to prove their case. Why is the defense any different from the plaintiff or the state, so say jurors. The conclusion, the defense has a burden of proof, a high one.” Gianna and Marcy, Opening Statements § 11:4 (Thompson Reuters/West 2013-2014 ed.).
Whether a civil or a criminal case, therefore, I submit that the burden to prove your innocence is yours, and yours to meet convincingly. The burden of proof is always important to argue, of course, especially in a criminal case to emphasize the existence of reasonable doubt. But in either case, a person unjustly accused of harming another, in excess of what the law allows, must prove that he or she acted reasonably, and must do so convincingly. If you are on trial, you were undoubtedly the armed, responsible citizen, acting reasonably under very stressful circumstances. Your attorney should not hide behind a burden defensively, but must be willing to rise to the challenge of meeting and exceeding that burden.
1 An express instruction to the jury that the prosecution’s burden as to “each element” of the crime, although practiced in many states, has been held not to be Constitutionally required in California. People v. Ramos, 163 Cal.App.4th 1082, 1088, 78 Cal.Rptr.3d 186, 191 (2008).
The author, Network Affiliated Attorney George M. Lee, is a partner at SEILER EPSTEIN ZIEGLER & APPLEGATE LLP (http://www.sezalaw.com) a San Francisco law firm, where he handles civil litigation matters in state and federal courts. Mr. Lee was formerly an Assistant District Attorney for the city and county of San Francisco and continues to handle select criminal matters.
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