Anatomy Of A Self-Defense Trial

[student]

JURY INSTURCTIONS

The jury instructions on a felony Assault self-protection case in Kemtucky are the most complex I have ever seen. The judge wryly noted (outsiede the hearing of the jury, of course) that they would be less complicated if this had been a homicide.

I won't even attempt to reproduce them in full.

Summary:

The judge instructed that as to "victim" they could find my client Not Guilty, or guilty of
a.) Assault 1 (Intentional) {Instruction 1), or
b.) Assault 1 (Wanton) {Instruction 2},
or
c.) Assault 2 (Intentional) {Instruction 3}, or
d.) Assault 2 (Intentional) {Instruction 4}, or
e.) Assault 2 (Wanton){Instruction 5},
or
f.) Assault 4 (Intentional) {Instruction 6}, or
g.) Assault 4 (Wanton) (Instruction 7},
or
h.) Assault 4 (Reckless) {Instruction 8}.

As to "ineffectual male" they could find her Not Guilty, or guilty of:

a.) Assault 2 (Intentional) {Instruction 10}, or
b.) Assault 2 (Intentional) {Instruction 11}, or
c.) Assault 2 (Wanton) {Instruction 12),
or
d.) Assault 4 (Intentional) {Instruction 13}, or
e.) Assault 4 (Wanton) {Instruction 14},
or
f.) Assault 4 (Reckless) {Instruction 15).

Instruction 9 - Self-Protection - will be reproduced essentially in its 3 page entirety:

Even thought the Defendant might otherwise be guilty of an offense described in Instruction Nos. 1, 2, 3, 4, 5, 6 7, or 8, if at the time the Defendant stabbed "victim" (if she did), she believed that "victim" was then and there about to use physical force upon her she was privileged to use such physical force against "victim" as she believed necessary to protect hereslf against it, but including the right to use deadly physical force in so doing only if she believed it to be necessary to protect herself from death or serious physical injury at the hands of "victim."

A. PROVOCATION QUALIFICATION
Provided, however, that if you believe from the evidence beyond a reasonable doubt that the Defendant provoked "victim" to use or attempt to use physical force upon her, and that she did so with the intention of causing death os serious physical injury to "victim," then the defense of self-protection is not available to her, unless you further believe from the evidence as follows:
a. The Defendant withdrew from the intial encounter and effectively communicated to "victim" her intent to do so;
AND
2. "Victim" nevertheless continued or threatened the use of unlawful physical force against her.

B. WANTON OR RECKLESS BELIEF QUALIFICATION
Provided further, however, if you beleive from the evidence beyond a reasonable dount thhat the Defendant was mistaken in her belief that it was necessary to use physical force against "victim" in self-protection, or in her belief in the degree of force necssary to portect herself:
AND
1. That when she stabbed "victim," (if she did), she failed to perceive a substantial and unjustifiable risk that she was mistaken in that belief, and that her failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation, then, if you would otherwise find the Defendat guilty of First Degree Assault under Instruction Nos. 1 or 2, or Second Degree Assault under Instruction Nos. 3, 4, or 5, you shall not find her guilty of that offense but shall instead find her guilty of Fourth-Degree Assault (Reckless) under this instruction and so state in your verdict.
OR
2. That when she stabbed "victim" (if she did) she was araware of and consciously disregarged a substantial and and unjustifiable risk that she was mistaken in her belief, and that her disregard of that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation, then your verdict should be as follows:
{a} If you would otherwise the Defendant guilty of First-Degree Assault (Intentional) under Instruction No, 1, or First-Degree Assault (Wanton) under Instruction No. 2, you shall not find her guilty of that offense bust shall instead find her guilty of Second-Degree Assault (Wanton_ under thsi Instruction No. ( and so state in your verdict.
(b) If you would otherwise find her guilty of Second-Degree Assault (Intentional) under Instruction No. 3 t=yous shall not find hern gyulty of that offense but instead find her guilty of either Sevond-Degree Assault (Wanton) under this Instruction No. 0 if a dangerous instrument was used or Fourth Degree Assault (Wanton) under this Instruction No. 9 if no dangerous instrumetn was used, and you shall so state in your verdict.
(c) If you would otherwise find her guilty of Second Degree Assault (Intentional) under Instruction No. 4, you hsall not find her gfuilty of that offense but instead find her guilty of Second-Degree Assault (Wanton) under this Instruction No. 9 if there was serious physical injury or Fourth-Degree Assault (Wanton) if there was physical injury but not serious physical injury and you shall so state in your verdict.

Instruction 16 was Definitions of

Intentionally
Wantonly
Recklessly
Physical Injury
Serious Physical Injury
Disfigurement
Physical Force
Deadly Physical Force
Dangerous Instrument.

(N.B., I earlier posted a link to the Kentucky Revised Statutes. Most of these definitions can be found in KRS 500.080, http://www.lrc.state.ky.us/KRS/500-00/080 PDF, and KRS 501.020, http://www.lrc.state.ky.us/KRS/501-00/020 PDF.

Instruction 17 was the Presumption Of Innocense.

Instruction 18 was for a Unanimous Verdict.

And my wrist is begining to hurt. I'll stop for now and discuss them later.

Murray/student




[This message has been edited by student (edited October 11, 2002).]

[Van Canna]

1. <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

That when she stabbed "victim," (if she did), she failed to perceive a substantial and unjustifiable risk that she was mistaken in that belief, and that her failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation.

Oh boy…. This is where your skill comes I, Murray. Right? You have to get into the minds of the jurors and transport them to the client’s experience moment, to make them see and feel in their minds’ eye what your client felt. Also how the brain gets altered under the fear emotion and the fight or flight mechanism.

2. <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

That when she stabbed "victim" (if she did) she was aware of and consciously disregarded a substantial unjustifiable risk that she was mistaken in her belief, and that her disregard of that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation.

This is where the expert [like a Mas Ayoob] who testified against the FBI and won, comes in handy, to bring judge and jury into uncharted territory.

But it looks like you did a fine job in turning the prosecution witness into your expert.



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Van Canna