History of South Carolina’s Self-Defense Jury Instruction

Formally in South Carolina, self-defense was an affirmative defense an accused was required to prove by preponderance of the evidence.  E.g. State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982) and State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976).

Applying this burden of proof, in State v. Hendrix, 270 S.C. 653, 657-58, 244 S.E.2d 503, 505-06 (1978), our Supreme Court held:

Based upon the prior decisions of this Court, in order to establish self-defense, a defendant must ordinarily show:

(1) That he was without fault in bringing on the difficulty.

(2) That he actually believed he was in imminent danger of losing his life or of sustaining serious bodily injury, or he actually was in imminent danger of losing his life or of sustaining serious bodily injury,

(3) If his defense is based on his actual belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, or if his defense is based on his being in actual and imminent danger, that “the circumstances were such as would warrant a man of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm, or losing his own life,”

(4) That he had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance.

State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984) changed the law of self-defense.  Our Supreme Court “removed the burden of proving self-defense from the defendant and placed it instead on the State in Davis.”  Burkhart, 350 S.C. 252, 262, 565 S.E.2d 298, 303 (2002).  In Davis, our Supreme Court recommended trial courts instruct jurors:

Self-defense is a complete defense. If established, you must find the defendant not guilty. There are four elements required by law to establish self-defense in this case. First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life. Fourth, the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance. If, however, the defendant was on his own premises he had no duty to retreat before acting in self-defense. These are the elements of self-defense.

If you have a reasonable doubt of the defendant’s guilt after considering all the evidence including the evidence of self-defense, then you must find him not guilty. On the other hand, if you have no reasonable doubt of the defendant’s guilt after considering all the evidence including the evidence of self-defense then you must find him guilty.

Davis, 282 S.C. at 46, 317 S.E.2d at 453.

After Davis, confusion lingered.  The second paragraph of the Davis instruction places the burden of proof on the prosecution to disprove self-defense.   The first paragraph of the Davis instruction, however, based on Hendrix, still places the burden of proof on the defendant.  

In State v. Glover, 284 S.C. 152, 326 S.E.2d 150 (1985), our Supreme Court required the Davis instruction in future cases.

In State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987) overruled on other grounds by State v. Torrence, 406 S.E.2d 315, 328, 305 S.C. 45, 69 (1991), the trial judge charged the first paragraph of the Davis instruction but then “instructed that the accused is required to establish the plea of self-defense by the preponderance or the greater weight of the evidence.”  Id. 293 S.C. at 105, 359 S.E.2d at 64.  Bellamy made it clear the second paragraph of the Davis instruction is required, placing the burden of proof the prosecution.  Bellamy, 293 S.C. at 105, 359 S.E.2d at 64.

Some trial judges thought Davis was the exclusive jury instruction.  Our Supreme Court “intended that the Davis charge cure the difficulties the trial bench encountered in charging the burden of proving self-defense. [The Court] did not, however, intend for the trial courts to eradicate the body of common law self-defense by accepting Davis as an exclusive charge.”  State v. Fuller, 297 S.C. 440, 443, 377 S.E.2d 328, 330 (1989).  Our Supreme Court “instruct[ed] the trial court[s] to consider the facts and circumstances of the case at bar in order to fashion an appropriate charge.”  Id.

The law of self-defense would evolve further.  In State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 492-3 (1998), our Supreme Court observed, “[C]urrent law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt.”  Wiggins, however, involved an appeal from the denial of a directed verdict motion and not the proper jury instruction.  The bench and bar, therefore, did not appreciate the significance of Wiggins.

In State v. Addison, 338 S.C. 277, 282, 525 S.E.2d 901, 904 (Ct. App. 1999), the of Appeals observed, “Indubitably, the law of self-defense has changed to the benefit of a defendant. However, the change has not been so dramatic that the State is now required to disprove a defendant’s claim of self-defense as Addison asserts.”  Our Supreme Court reversed and tried to end the confusion.  The Court observed, “In Wiggins, we specified for the first time, though not in the context of a jury charge, that the State has the burden of disproving self-defense.”  Addison, 343 S.C. at 293, 540 S.E.2d at 451.  Our Supreme Court then held, “When self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt.”  Id. 343 S.C. at 294, 540 S.E.2d at 451.

The Court next addressed this issue in Burkhart.  “In Wiggins, this Court eliminated any confusion lingering since Davis by enunciating the State’s precise burden clearly: current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt.”  Burkhart, 350 S.C. at 262, 565 S.E.2d at 303 (internal quotes and citation omitted).

For a brief period it seemed the prosecution must prove “beyond a reasonable doubt that each of the elements of self-defense [does] not exist.”  Burkhart, 350 S.C. at 264, 565 S.E.2d at 304.  But, our Supreme Court later clarified, “A jury charge on this issue should state 1) the State has the burden of disproving self-defense and 2) this burden is carried by disproving any one of the four elements by proof beyond a reasonable doubt.”  State v. Bixby, 388 S.C. 528, 554, 698 S.E.2d 572, 586 (2010).

The tortured history of the self defense jury instruction and the enactment of the “Protection of Persons and Property Act,” also know as the “Castle Doctrine,” raise the question of whether our state’s self-defense jury instruction is obsolete.  Please check back on Monday, March 10, 2014 for a post explaining why “South Carolina’s Self-Defense Jury Instruction is Obsolete and Inadequate.”