H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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“Defending” Your Self Defense Case in Colorado

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Defending Your Right to Self Defense in Colorado

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction to Colorado Self Defense Law

One of the most misunderstood defenses to a charge of, for example, assault, is the affirmative defense of self-defense. While many online sources address the defense itself, there has been very little written about the ways that the defense of self-defense can “unwind” at trial resulting in the “disqualification” of the defense.

Colorado law allows for raising the affirmative defense of self-defense a relatively easy task at trial, however, maintaining the defense may become a more difficult task over the life of that trial.

What is an Affirmative Defense?

Affirmative defenses work to limit, excuse, or avoid a defendant’s criminal culpability. They are called “affirmative defenses” because the defendant must “affirmatively” come forward with some evidence that the defense is supported by the evidence.

Under Colorado law, an affirmative defense raises two burdens of proof. The first is the burden of production (going forward with evidence) which the defendant’s burden. If the defendant raising the affirmative defense of self-defense fails to satisfy this burden, the jury will not be instructed on the defense.

On the other hand, if an affirmative defense is successfully raised, then the guilt of the defendant must not only be established beyond a reasonable doubt as to the original charges, but the defense adds the burden of disproving the affirmative defense to the very same standard of proof.

Affirmative defenses are classified as either justification defenses or excuse defenses. Justification defenses, such as self-defense, admit that the defendant committed the criminal act with the requisite intent but assert that, in this instance, the act should not be criminal.

Finally, a justification defense claims that the defendant’s conduct should be legal rather than criminal because it supports a principle valued by society. A defense based on excuse focuses on the defendant. An excuse defense claims that even though the defendant committed the criminal act with criminal intent, the defendant should not be responsible for his or her behavior.

Colorado’s Law of Self Defense

Colorado’s law of self-defense, a defense of “justification,” § 18-1-704(1) reads as follows:

(“[A] person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.” Section 18-1-710, C.R.S.

Understanding “Perfect” and “Imperfect” Defenses

In the state of Colorado, we believe that individuals have the right to protect themselves from harm. If one acts in self-defense one is justified in taking the steps required for self-preservation and the act of self-defense is therefore rendered completely “noncriminal.”

A successful claim of self-defense is therefore a “perfect” defense.

A defense can either reduce the severity of the offense or completely exonerate the defendant of responsibility for that crime. A defense that reduces the severity of the offense, is called an “imperfect defense.”

An affirmative defense, such as self-defense, if successful, requires a complete and perfect acquittal of the charge.  A perfect defense means the defendant is innocent of the crime.

A successful, but imperfect defense, results in a verdict of guilt at some level of crime such as a “lesser included offense.”  The defense is imperfect because it results in a guilty verdict of some kind. For example, if a jury comes back with a verdict of manslaughter in a first-degree murder trial, the jury has convicted the accused of the lower charge while acquitting on the highest charge. This results in exposure of the defendant to a substantially lower possible penalty for the charge, and consequently. The result is therefore deemed “imperfect.”

Compare “Negating Defenses”

Many defenses are “negating defenses” and are raised in an attempt to “negate” an essential element of the crime or crimes charged by the state. One example is the element of identification required in every criminal prosecution. The state is tasked to prove the identification of the defendant as the person who committed the crime as well as every other essential element of a charge – beyond a reasonable doubt.

A successful challenge to the state’s case based on a failure to prove the element of identification of the accused as the perpetrator of the crime “negates” that essential element of the crime and therefore defeats the state’s case. An attack on the case based on a missing element is commonly referred to as a “failure of proof” defense.

A Colorado criminal defendant must be found not guilty if the prosecution cannot prove every essential element of the crime charged beyond a reasonable doubt.

Raising an Affirmative Defense

To assert the “affirmative defense” of self-defense in a Colorado trial the defense is required to identify “some credible evidence” supporting the accused’s claim of self-defense. ANY credible evidence, including even the highly improbable testimony of the defendant himself, will support the defense.

While the “some credible evidence” standard to assert a claim of self-defense is a very low bar, the District Attorney has several weapons to fight back at trial. This article reviews the two primary “exceptions” to the successful use of self-defense in this context, ….the “initial aggressor” and the “provocation exceptions.”

The bar is also set very low for the state to raise one or both of these two exceptions as a possible bar to the affirmative defense of self-defense. The “reasonable inference” standard is all that is required for the state to assert one or both of these self-defense exceptions. The state’s evidence must be such as would support a reasonable inference that the accused was the initial aggressor or was provoked the other person into attacking (or appearing to attack).

A Closer Look at the Doctrine of Self Defense in Colorado and Exceptions to the Defense

Three separate laws encapsulate the defense of self-defense in Colorado.

Section 18-1-704 (Use of physical force in defense of others)

Section 18-1-704.5 (Use of deadly force against intruders)

Section 18-1-705 (Use of physical force in defense of premises)

A Quick Review

One way for the prosecution to defeat a claim of self-defense is to assert and prove that an exception to self-defense applies.

The two primary vehicles that are the exceptions to self-defense are the initial aggressor and the provocation exception.

A trial court may instruct the jury on an exception to an asserted affirmative defense if “some evidence” supports the exception.

Under Colorado law a person is legally authorized to use physical force upon another person without first retreating if:

1. He or she 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 or she used a degree of force that he reasonably believed to be necessary for that purpose, and

3. He or she did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.

4. He or she 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.

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 conditions.

IF the state proves that the person accused of assault, for example, (and who now claims that he acted in self-defense) was the “initial aggressor” or “provoked” the crime, such a finding defeats the defendant’s claim of self-defense.

“Defending” the Defense of Self Defense

Colorado’s self-defense statute justifies the use of force only if a person reasonably believes there is imminent danger and only to the extent that the person uses a reasonable degree of force. The elements of the defense are clear. But the analysis does not end there. The Initial aggressor and provocation exceptions are known as disqualifying conditions that can rebut a claim of self-defense.

If the state “counterattacks” a defendant’s claim of self-defense using the initial aggressor and provocation exceptions, the defense must  then “defend the defense.”

Analysis Explaining the Relevance of Exceptions that Negate a Claim of Self-Defense

As noted, self-defense is an affirmative defense. An affirmative defense means the defendant generally admits the commission of the elements of the charged act but seeks to justify the act.

One way for the prosecution to attempt to defeat a claim of self-defense is to prove beyond a reasonable doubt that an exception to self-defense applies.

One such exception arises when the defendant was the initial aggressor:

The Initial Aggressor Exception – the Relevant Law

It is not an affirmative defense that the defendant used physical force upon another person … if the defendant was the initial aggressor…

The “initial-aggressor” limitation is a restraint on a defendant’s right to claim self-defense. One loses the right to defend himself from an attack and becomes an initial aggressor when he is the first to physically attack another or initiates the altercation.

An initial aggressor is formally defined as the person who “initiated the physical conflict by using or threatening the imminent use of unlawful physical force.”

The analysis does not end there. There IS a way to regain the right to self-defense? A good faith and well-communicated withdrawal from the altercation by the initial aggressor “revives” the right to self-defense.

Section 18-1-704(3)(b) outlines how an initial aggressor can regain the right to self-defense. The following steps must take place if the defendant was the initial aggressor:

The defendant must withdraw from the encounter.

The Defendant must effectively communicated to the other person his intent to do so.

The other person nevertheless must continue or threate the use of unlawful physical force.

After an initial aggressor effectively withdraws from an encounter, the original non-aggressor can then becomes the aggressor IF the original non-aggressor “continues or threatens the use of unlawful physical force.”

Insults Alone Not Enough for Initial Aggressor Disqualifier

Uttering an insult or engaging in an argument also does not justify identifying a defendant as the initial aggressor. For example, in a road rage episode, an exchange of insults yelled at one another from their respective cars is probably not enough. Insults alone do not make either party an initial aggressor.

Elements of the Provocateur Limitation – the Relevant Law

It is not an affirmative defense that the defendant used physical force upon another person with the intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that person.

The provocation exception is authorized when:

The other person uses unlawful physical force against [the defendant];

The defendant provoked the use of such physical force by the other person; and

The defendant intended his provocation to goad the other person into attacking him [or her] in order to provide a pretext to injure or kill that person.

Sometimes referred to as the “provocateur limitation”  this is another restraint on a defendant’s right to claim self-defense. A provocateur is someone who provokes an attack against himself or another.

In contrast to the initial aggressor limitation, the provocation limitation applies in situations where the defendant was not the initial aggressor. In other words, an initial act of aggression (say, a threat of unlawful force) can be sufficient to establish both that the actor is the initial aggressor and — if that act of aggression is undertaken with the intent to provoke the other person to attack so the actor may injure or kill the other person — the actor provoked the other person.

Put differently, the provocateur loses his right to self-defense for mere insults or other non-threatening, provocative language or gestures. The provocateur who engages in this behavior with the intent to provoke an attack against himself forfeits the right to claim self-defense at trial.

Unlike Initial Aggressors, Provocateurs Cannot Withdraw

A provocateur may NOT revive the right to self-defense by withdrawing in the same manner as an initial aggressor. There is no “withdrawal rule” to the provocateur limitation. Initial aggressors may find their way back to “justifiable self-defense” but provocateurs cannot.

The provocateur exception is much more complex than the initial aggressor exception. Since the provocateur does nothing to which the other person must defensively respond, the initial aggressor is always the other party… hence the need for this exception.

Provocateurs are not permitted to legally “unring the provocative bell.” The benefit of the “withdrawal rule” is the opportunity to essentially stop the fight. Where the initial aggressor ceases to fight, the person whom the aggressor has attacked and now has no reason to advance, perhaps saving a life.

A provocateur who intentionally provokes an attack against himself loses the protection of the law because that person, having provoked the incident, morally has signed up for the full fight.

Some Serious Questions About the Provocation Exception

What is not so clear about the provocation exception is the inevitable situation where the defendant was merely exercising his right to free speech or free expression with no intent to bring about physical harm and therefore poses no threat.

The concept of the provocation exception as a disqualifier to the affirmative defense of self-defense raises other questions such as these:

Civil Society – Do we not expect some level of tolerance in a society where people are expected to control their behavior, even when angry, and do not act on impulse?

Blaming the Victim – Isn’t the provocation exception a vehicle that creates a culture of blaming the victim?

Entirely Subjective – It is nearly impossible to determine what provocative statements qualify for the exception and which do not. What could be more subjective than determining the correct “level” of provocation?

Cultural Impact – While the judge instructs the jury to use an objective test commonly referred to as the “reasonable person” standard before a finding of provocation, how can characteristics, such as ethnicity and culture which affect a person’s capacity to lose self-control, be included in that test?

Sidebar: Mutual Combat

It is important, before concluding the article, to point out Colorado’s third exception to the use of self-defense… mutual combat.  Under Colorado law, a person may not claim self-defense if the physical force defended against is the product of a “combat by agreement not specifically authorized by law.” See § 18-1-704(3)(c).

Summary and Conclusion – “Defending” Your Self Defense Case in Colorado

The right to self-defense has long and deep roots in both our state’s history and in our state’s legislatively enacted laws. The basic tenets of our self-defense law have remained relatively unchanged for centuries and closely reflect Colorado’s frontier culture.

A person who has properly used force to defend himself or herself is, by definition, acting reasonably. Any analysis of a Colorado self-defense case must take into account the fact that “detached reflection cannot be demanded in the presence of an uplifted knife.”

However, cases involving self-defense are complex and there are limits on the use of this defense such as the initial aggressor and the provocation disqualifiers.

An experienced criminal defense lawyer must be familiar, not only with the statutes at work here, but the case law and the concepts of these exceptions to aggressively defend attacks on the right to assert self-defense as an affirmative defense at trial.

If you found any information I have provided on this web page article helpful please share it with others over social media so they may also find it. Thank you.

Never stop fighting – never stop believing in yourself and your right to due process of law.

H. Michael SteinbergABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.

When you are searching for the right lawyer and trying to make the most responsible choice, we encourage you to look at our firm. Over the last 35 plus years, H. Michael has studied and written about nearly every area of criminal law, criminal procedure, trial, and courtroom practice. He is passionate about getting the best result in each of the cases he defends. By studying the law and writing these articles, he hopes to not only master the law but help you in your understanding of your case in some small way.