The underlying principle of self-defense is this: someone is excused from using what would normally be an illegal amount of force—even up to lethal force—in order to prevent serious injury from a threatening person. In a criminal trial, if the defendant succeeds with a self-defense argument, the defendant cannot be found guilty of that particular charge.

Holland and Usry recently took a look at self-defense as a defense when charged with assault and battery. But self-defense is more widely useful. Self-defense is not just used as a defense when available in assault and battery cases, but also in attempted murder and murder cases.

The Prosecution’s Burden of Proof

There are four key factors of self-defense. The burden is always on the state to prove that the defendant is guilty. This is true even when—or especially when—the defendant claims self-defense as a justification for his actions.

Because the government has so much power at its disposal, it’s required to prove beyond a reasonable doubt that the defendant committed the criminal act of which he has been accused. This means the state will have to disprove at least one element of self-defense. If the prosecutor fails to do that, he has not met his burden, and the defendant is not guilty.

So let’s take a closer look at those four parts of a self-defense claim:

Part One: The Defendant Was Without Fault in Bringing on the Difficulty

The law defines bringing on the difficulty as provoking it. Legal provocation is any act in violation of law that would be reasonably expected to produce the fight. So the provocation must be unlawful and intend to incite the fight.

There are a couple of things to remember. First, legally arming yourself after threats is not provocation. In fact, brandishing a weapon is not provocation if done in response to prior threats and to avoid a fight. Also, in the event the defendant does provoke the fight, he can still be entitled to self-defense if he communicates his withdrawal by word or deed.

Part Two: The Defendant Believed He Was in Imminent Danger of Being Killed or Seriously Injured, or Actually Was in Imminent Danger

“Imminent danger” means danger that is immediately present and real. Notice that, for the purpose of the self-defense argument, as long as the defendant actually believes he faces real danger of death or serious injury, it doesn’t matter whether that threat could actually happen. For example, if the defendant was threatened by someone wielding a gun and the defendant thought an attack was about to happen, it would not matter if the gun had not been loaded.

Imminent danger is almost always determined by the circumstances of the confrontation. Some of the factors considered include:

  • Disparity in physical conditions
  • Complainant or the victim under the influence of drugs or alcohol
  • Complainant’s or the victim’s conduct showing intent to battle
  • Prior bad blood
  • Prior threats
  • Prior attacks or attempted attacks
  • Defendant’s knowledge of complainant or victim’s prior violent acts against others
  • Characteristics of the parties

Part Three: If, Based on Belief of Imminent Danger, a Reasonable Person Would Have Had the Same Belief

In determining actual danger or reasonable belief of imminent danger, the defendant has the right to act on appearances. The defendant does not have to be right about the conclusions he draws based on the appearances. The defendant doesn’t have to prove that he was actually in danger, but must show only that he reasonably believed he was in imminent danger. In other words, that a normal person would feel the same way.

Part Four: There Was No Probable Means of Avoiding the Danger

A reasonable person, if threatened with serious or lethal danger, would choose to retreat if possible. For the legal claim of self-defense, though, there is no duty to retreat if it will increase the danger of being killed or seriously injured.

In previous cases, South Carolina courts have found the following conditions support a claim that a defendant has no duty to retreat:

  • The defendant believed it was unsafe to leave the car and run away
  • The complainant or victim had a superior position to the defendant
  • The complainant or victim was beating on defendant

Do You Have a Self-Defense Claim Against Your Criminal Charges?

If you have been charged with assault and battery, criminal domestic violence, or other crimes of violence, you need an attorney. And if self-defense doesn't apply to your case, it's just as important to defend yourself, because the stakes are high. Call us toll-free at 888.230.1841 to speak to an experienced defense lawyer.

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John Holland
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John Holland is a Spartanburg Family law attorney, practicing since 2012.
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anonymous 02/23/2017 12:07 AM
I'd hire you in a heartbeat. Too bad you're so many states away.
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