Recommending New Self-Defense Jury Instructions in South Carolina

Previous blog posts have reviewed the “History of South Carolina’s Self-Defense Jury Instruction” and explained why “South Carolina’s Self-Defense Jury Instruction is Obsolete and Inadequate.”  This post recommends new jury instructions to replace the outdated ones.

The following instruction is recommended in homicide cases:

A person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person.

The State has the burden of disproving self-defense beyond a reasonable doubt.

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.

This first paragraph of this instruction is similar to Ga. Code Ann. § 16-3-21(a) and replaces the “elements paragraph” of the instruction required by State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984).  The second paragraph is from Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002).  The final paragraph retains the burden of proof language from Davis.

When appropriate under the facts of the case, the court should also instruct S.C. Code Ann. § 16-11-440(C), which comes from the “Protection of Person’s and Property Act,” also know as the “Castle Doctrine:”

A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be . . . has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person.

South Carolina also needs a clear instruction for cases when deadly force is not necessary or used in self-defense.  The follow is based on Ga. Code Ann. § 16-3-21(a):

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.

In these cases, the prosecution still has to burden of disproving self-defense beyond a reasonable doubt, and the court should so instruct the jurors.

Please click one of these links “History of South Carolina’s Self-Defense Jury Instruction” and “South Carolina’s Self-Defense Jury Instruction is Obsolete and Inadequate.”