Asserting Self-Defense for a Violent Crime Charge

By David Hammond

When charged with a crime, the accused is innocent until proven guilty. This is a pillar of the U.S. justice system. Just because the burden of proof initially rests squarely on the prosecutor’s shoulders, however, does not mean that the defense team should sit back and wait to see just how strong of a case the prosecutor can present without taking action to weaken that case in any way possible. The defense strategy will largely rest on the nature of the crime, the circumstances surrounding the crime, and other relevant factors. One commonly employed defense strategy when the crime is one that is violent in nature is for the defendant to assert self-defense. Certain things must be accomplished in order to effectively assert self-defense when the defendant is charged with a violent crime.

How to Effectively Assert Self-Defense When Charged with a Violent Crime 

Self-defense is considered to be an affirmative defense. This means that the defendant is essentially saying that the action the prosecutor is accusing him or her of taking did, in fact, happen, but it should not be considered illegal because of extenuating circumstances. In cases where the defendant is charged with a violent crime, such as assault or battery, the defendant may assert self-defense, which is a claim that yes, they committed a violent act, but it should not be considered illegal because the defendant was defending himself or herself from an imminent threat of harm.

In order to effectively assert self-defense, however, the defendant carries the initial burden of proving that the defense is substantial. This means that the defense team must show that there was an actual and imminent danger or risk of harm to the defendant which would justify the defendant using physical force to neutralize the threat.  Once the defense is raised by the defense, the prosecution is required to prove beyond a reasonable doubt that the defendant was not acting in self-defense.

Under the New York Penal Code, self-defense is also known as “justification.” When self-defense is successfully asserted, the defendant is justified in using physical force to defend himself or herself. New York law says that this is the case when a person reasonably believes it is necessary to defend himself or herself against the use or imminent use of physical force by another person.

The use of force against another in the name of self-defense, however, must be proportional to the imminent threat of force. Only that level of force reasonably necessary to neutralize the threat of imminent harm is permissible pursuant to self-defense. If an aggressor was moving in to punch you and you pulled out a knife on your attacker, this is likely to be seen as a disproportionate reaction to the imminent threat and, therefore, is not likely to be covered under a self-defense assertion.

Furthermore, the fact that New York is a “duty to retreat” state can create another big obstacle in successfully asserting self-defense. The duty to retreat means that, prior to acting in self-defense, a person is obligated to take reasonable measures in order to reduce the threat of harm. This may include running away or calling law enforcement. Duty to retreat states are the opposite of “stand your ground” states which place no duty to retreat in the face of a physical threat.

Syracuse Criminal Defense Attorneys

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About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.