Self-Defense Instructions

[TalkLeft]

Here is a thread to discuss self-defense instructions. They are contained in Instruction 3.6 of the Florida Jury Instructions.

[jjr495]

Now that we know from juror B37 that three jurors wanted to initially convict GZ and that B37 also thought GZ went too far, it seems that the outcome may have pivoted on not including the initial aggressor part of the self defense jury instructions. The following is from pages 64 and 65 of the Florida Supreme Court jury instructions.

Aggressor. § 776.041, Fla. Stat.
However, the use of deadly force is not justifiable if you find:
Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or
Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
2. (Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Both sides agreed that paragraph 1 above did not apply, but if 2 had been included I think GZ may have been convicted or the jury would have hung.
The video of these arguments are here, here, and here. West was at his best and Mantei probably put too much effort into the child abuse issue. Nelson never explained her reasoning. She was in a hurry to get the instructions written before the scheduled opening arguments.

[MJW]

Now that we know from juror B37 that three jurors wanted to initially convict GZ and that B37 also thought GZ went too far, it seems that the outcome may have pivoted on not including the initial aggressor part of the self defense jury instructions. The following is from pages 64 and 65 of the Florida Supreme Court jury instructions.Both sides agreed that paragraph 1 above did not apply, but if 2 had been included I think GZ may have been convicted or the jury would have hung.

If that paragraph had been included, the defense would have insisted that "provoke" be defined in the instruction as "force or the threat of force" in accordance with Gibbs.

[jjr495]

If that paragraph had been included, the defense would have insisted that "provoke" be defined in the instruction as "force or the threat of force" in accordance with Gibbs.

Mantei argued that "force or threat of force" be included with the 776.041 aggressor instruction. West argued that there was no evidence of force or threat of force, and therefore 776.041 should not be given at all. West's long argument about the facts in evidence regarding the force issue won the argument and may have helped un-hang the jury.

[nomatter_nevermind]

the defense would have insisted

I thought the judge had the final say on everything. What would give the defense the power to insist on something?

[MJW]

Mantei argued that "force or threat of force" be included with the 776.041 aggressor instruction. West argued that there was no evidence of force or threat of force, and therefore 776.041 should not be given at all. West's long argument about the facts in evidence regarding the force issue won the argument and may have helped un-hang the jury.

The defense was wise to argue against allowing the aggressor instruction, and the judge was correct in excluding it, given there was virtually no evidence to support it; however, I think if the instruction were given, with the "force or the treat of force" limitation added, it could be either harmful or helpful. Harmful, because it might confuse the jury into considering provocation, despite the lack of evidence GZ first used force or the threat of force; helpful, because it might make clear that getting out of his car and following Martin are not factors in deciding whether GZ properly asserted self defense, though the prosecutors did their best to suggest they were.

[MJW]

I thought the judge had the final say on everything. What would give the defense the power to insist on something?

Webster's Ninth New Collegiate Dictionary.
Insist: to be emphatic, firm, or resolute about something, intended, demanded, or required.

They could insist -- be emphatic, firm, or resolute -- and still be denied by the judge. But then, you knew what I meant, but were just being you.

[nomatter_nevermind]

But then, you knew what I meant

I didn't, actually. Thanks for the clarification.

[MJW]

I didn't, actually. Thanks for the clarification.

In that case, I'm slightly insulted, that after all my discussions of the law, you'd still think I was so uninformed as to believe the defense could require the judge to modify a jury instruction. (I'm only half serious.)

[nomatter_nevermind]

In that case, I'm slightly insulted, that after all my discussions of the law, you'd still think I was so uninformed as to believe the defense could require the judge to modify a jury instruction.

You know a lot more about these things than I do. For all I knew, you might be right.

There was nothing personal about this for me. I was puzzled, so I asked.

[TalkLeft]

Mantei tried to pull a fast one. Remember when West said he didn't want the self-defense instruction to specify aggravated battery was the forcible felony Martin committed against him even though the judge read it to the jury during voir dire that way? And West said something about withdrawing the instruction because it was a trick? I wrote a long post on this here.

I couldn't figure it out before and now I have. (If someone else has already discussed this, sorry, I haven't seen it.) I wrote:

As far as I can tell, instead of having two ways for the shooting to be a justifiable use of deadly force with no duty to retreat under stand your ground, the defense is now down to one. And it prefers the single option to whatever "trick" the state had up its sleeve.

I'm not sure what the trick was. West only said the state wanted the jury to hear the elements of aggravated battery and it was trying to trick the defense into asking for the specific forcible felony justification because then the jury would learn the elements of aggravated battery. I don't understand how the state benefits from the jury being instructed it could find Trayvon Martin committed an aggravated battery against Zimmerman, but obviously, there's more to this story than meets the eye.

Here's the trick the state tried to pull: There is no definition of great bodily harm in the self- defense instructions. The pattern instructions contain a definition but it's for aggravated battery, not self defense. Mantei wanted aggravated battery in there as part of GZ's self defense instruction so he could get the agg battery version of great bodily harm in. West knew it was  a trap and gave up this part of his self defense argument. The agg battery version says bruises are not great bodily harm

The judge refused to give it.

The instruction that you're seeking to have entered is -- says that "great bodily harm is distinguished from slight, trivial, minor or moderate harm, and as such, does not include mere bruises as are likely to be inflicted in a simple assault and battery." The testimony before the court, whether the jury chooses to believe it or not -- that's their purview -- is that you don't have to have any injury to be in fear to the extent of the justifiable use of deadly force.

The version of self defense read to the jury in voir dire included this:

Deadly force" means force likely to cause death or great bodily harm.

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent (1) imminent death or great bodily harm to himself or another or (2) the imminent commission of aggravated battery against himself or another.

Aggravated battery is intentionally touching or striking another against his or her will, and in committing the battery, intentionally or knowingly causing great bodily harm, permanent disability or permanent disfigurement to the other person.

The final instruction read:

    “Deadly force” means force likely to cause death or great bodily harm.

    A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself