By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – Self Defense and Multiple Attackers
Understanding Colorado’s self defense system of laws requires first an understanding the basic foundational concepts written into the framework of statutes and then focusing on the factual scenario for raising the defense that arises in the given criminal case at issue.
While the one-on-one fight is the most common of these factual scenarios, attacks come in all forms and therefore defending against a group of attackers the ”multiple assailants” case presents a more complex set of facts and the legal issues are equally complex.
This article, and others I have written on multiple assailants, and the Colorado law of mutual combat and the duty to retreat, well establish that Colorado self defense laws are in almost constant flux.
Colorado’s Basic Self Defense Law
To understand the nature of the defense of self defense the best place to start is to look at the law as it is handed to the jury at the end of a trial when self defense has been successfully raised by a Defendant accused of a violent crime – a crime such as assault.
Here is the stock jury instruction of law:
The evidence presented in this case has raised the affirmative defense of “defense of person,” as a defense to (assault).
The defendant was legally authorized to use physical force upon another person without first retreating if:
1. He used that physical force in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person and
2. He used a degree of force which he reasonably believed to be necessary for that purpose.
[Several exceptions then can be asserted by the District Attorney to “defeat” the successful use of self defense as an affirmative defense – those are:]
The Absence of Provocation
He did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.
The Defendant Was NOT The “Initial Aggressor”
He was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.
This Was Not “Combat by Agreement”
The physical force involved was not the product of an unauthorized combat by agreement.
If A Case Involves Deadly Physical Force.
A person may use deadly force only if “he reasonably believes a lesser degree of force is inadequate” and he “has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.” § 18-1-704(2)(a).
Self Defense Is An Affirmative Defense
The District Attorney – once an affirmative defense is properly raised – must DISPROVE that affirmative defense beyond a reasonable doubt.
Colorado juries are instructed that:
The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.
After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of assault. In that event, you must return a verdict of not guilty of that offense.
After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense.
In that event, your verdict concerning the charge of assault must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of that offense..
Self-defense is further defined as a “justification defense.” A justification defense essentially is defined as the nullification of an alleged crime because the actions of the Defendant were justified under the circumstances. Self-defense is an affirmative defense and presents as an “alternative theory of defense.”
The Burden Is On The Defendant To Raise The Defense – But That Burden Is Light
A Defendant need only present “some evidence” on the issue to be entitled to a self-defense.
“The small quantum of evidence needed may come from any source, even from the prosecution. If there is any evidence — including circumstantial evidence — in the record to support the theory that a defendant acted in self-defense, the defendant is entitled to such an instruction. “
The jury, not the judge, to decide whether the defendant acted in self-defense.
“Once the defendant offers a scintilla of evidence of self-defense, and the prosecution has offered evidence to support any exception to self-defense the jury should be provided with the self-defense instruction, including the . . . exception, and be permitted to weigh the evidence to decide whether self-defense has been disproved.”
In every Colorado jury trial the Trial Judge has the duty to properly instruct the jury on the law that applies to the facts presented during the trial.
It is my opinion that the regular or “stock” instruction (above) in Colorado self defense cases does not go far enough in advising a jury of the unique nature of defending against multiple attackers – it does not adequately instruct a jury to consider the totality of the circumstances in a multiple assailant fact pattern.
The Fight To Make Certain A Jury Is Properly Instructed On The Impact of Multiple Attackers In Colorado Self Defense Cases
The failure to properly advise Colorado juries on the applicable law of self defense has consequences. Recently, in two cases the Defendants asserted self defense and were later convicted at trial were reversed on appeal for a failure to properly advise on the law of self defense.
The Nature of Self Defense When There Are Multiple Attackers
Why then are cases involving multiple attackers so challenging? When a Defendant asserts self defense the jury is tasked to confront and understand the actual threat to the accused under “the totality of circumstances” in play in that individual’s case.
There is no bright line test but it is clear that when there is a disparity of force lawfully using force in an act of self-defense must be “reasonably proportionate.” Criminal jury trials involving the use force in self-defense – require a close analysis of the use of force in the context of the factors at play in the moment of threat to the Defendant’s personal safety.
The use of force decision is placed into a kind of “continuum” a range of levels of that is based upon proportionality. A person claiming the protection of self defense must reasonably respond to the disparity of force the attacker – or attackers present.
The Arrogance Of Hindsight
The job of the experienced Colorado criminal defense lawyer is to understand first that the people judging your client – the jury – will not experience the actual stress the Defendant felt while he or she was under attack. The prosecutor has the benefit of the “arrogance of hindsight” having access to after-the-fact information the Defendant did not have at the time of the attack.
During the trial difficult, almost impossible, choices made in the moment are examined under an often unfair and unjust microscope. When multiple attackers are involved the case facts increase exponentially in complexity.
The disparity of force faced by the Defendant in a given case – the force or threat faced by the person attacked then and there raises the core issue of self-defense law – the use of reasonable force under the circumstances.
The size and strength of the threat is then at the core of that core – the disparity of force in that instance.
A Single Attacker Versus Multiple Attackers
It is obviously more difficult for one person to defend against multiple attackers than against a single assailant. A person exercising self defense against multiple attackers must, out of necessity to survive use more aggressive force.
When confronted by the single unarmed attacker the defender has the option of waiting for that person to initiate the attack before defending and the law actually requires that approach in most instances.
Against multiple attackers, the option of waiting for the attack may not be possible and the defender may, based on “apparent necessity” – strike first. Self-defense is viewed from the perspective of the defender, from the point-of-view of the Defendant and judged as compared to the actions of a reasonable person in that person’s shoes.
The Doctrine Of Apparent Necessity
In a nutshell, a Defendant exercising self defense is permitted to rely on the doctrine of “apparent necessity” not “absolute certainty.” The doctrine of apparent necessity allows a jury to mold their view to the specific facts in the case.
Juries are instructed that they are to consider the Defendant’s “reasonable belief” of use or imminent use of force.
The trier of fact in a self-defense case involving multiple assailants must consider the “totality of circumstances,” including the number of persons reasonably appearing to be threatening the
accused, . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive action and the reasonableness of force used by him to repel the apparent danger.
Put a little differently – a defendant has a constitutional right to have:
“a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint, upon the supposition that the jury might believe … his testimony, and that of his witnesses….
It is fundamental that the law of self-defense, which is emphatically a law of necessity, involves the question of one’s right to act upon appearances, even though such appearances may prove to have been deceptive; also the question of whether the danger is actual or only apparent, and as well the fact that actual danger is not necessary, in order to justify one in acting in self-defense.
Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity.
Beckett v. People, 800 P.2d 74 (1990)
Colorado Criminal Law – Colorado Self Defense Law – When You Are Attacked By Multiple Assailants
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Colorado Criminal Law – Colorado Self Defense Law – When You Are Attacked By Multiple Assailants