South Carolina’s Self-Defense Jury Instruction is Obsolete and Inadequate

As discussed in a recent blog post entitled, “History of South Carolina’s Self-Defense Jury Instruction,” the following jury instruction is required in self-defense cases:

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.

The Davis jury instruction on self-defense is obsolete and inadequate for at least three reasons.

First, the mandated instruction is burden shifting.  The first paragraph of the Davis instruction dates back to the time when a defendant had the burden of proving self-defense.  Use of the term “elements” implicates a burden of proof.  In a criminal case, it is axiomatic that the prosecution must prove each element of a crime beyond a reasonable doubt.  Thus, the second paragraph of the Davis instruction, placing the burden of proof on the prosecution, leaves the jurors confused whether the defendant has to meet each and every element or the state truly has the burden of proof.

Second, the “duty to retreat” portion of the Davis instruction is obsolete because the “Protection of Persons and Property Act,” also known as the “Castle Doctrine,” repealed the common law duty to retreat for a person in a “place where he has a right to be.”  Under the common law, a person is excluded from the duty to retreat only at home or in situations where retreating would increase the danger of serious injury or death.

Third, because it is tailored to homicide cases, the Davis instruction addresses threats of death and “serious bodily injury.”  Self-defense using non-lethal force is allowed to respond to attacks that would not case death or “serious bodily injury.”  A separate instruction should be crated for those situations.

Please click here to read “History of South Carolina’s Self-Defense Jury Instruction.”

Please check back on Monday, March 17, 2014 for a post “Recommending New Self-Defense Jury Instructions in South Carolina.”