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This is the first of a series of columns addressing the law of self-defense in Maine. The George Zimmerman / Trayvon Martin case has and continues to generate much controversy and debate nationwide and has arguably raised more questions than it has answered. For the sake of brevity and focus, I will limit this discussion to the use of self-defense as it pertains to deadly force in defense of one’s self in a murder prosecution (self-defense may also, under certain circumstances, be employed in the defense of third persons and/or property. Likewise, self-defense is limited to the use of non-deadly force in some situations).

As you probably have surmised, the concept of self-defense is ancient as a “justification” which allows a person to engage in otherwise illegal, violent conduct with impunity. While common law and statutory definitions have evolved and changed over the centuries, decades and years, the basic theoretical concept has remained constant: One may use deadly force to repel or prevent the use of deadly force against him.

Maine has codified its definition of self-defense as well as a number of other “justification” defenses in The Maine Criminal Code (see 17-A M.R.S.A. Sections 101 & 108). These defenses justify one who engages in otherwise criminally proscribed conduct due to the particular circumstances with which he was confronted. At the trial stage, if a justification defense is generated by the evidence, the judge will instruct the jurors that, if they find beyond a reasonable doubt that the defendant committed the alleged crime, they must next consider whether he was justified in doing so by a particular justification defense(s). If the jury finds that the state was unable to disprove the existence of the justification defense beyond a reasonable doubt, the verdict is not guilty. In other words, in a trial in which a justification defense is generated, the state must first prove all of the elements which constitute the alleged crime (as determined by the legislature). If successful, the state must also disprove the applicability of the claimed justification beyond a reasonable doubt.

A defendant is not entitled to a justification defense jury instruction, like self-defense, simply because he asks for it. The judge must first determine whether the evidence warrants the instruction. In making that decision the judge must decide whether or not enough credible evidence has been introduced (generated) during the trial phase to allow a reasonable juror to consider the subject defense as viable. Judges rely on their experience, statutes, common sense and case law for guidance. Their decisions are subject to appellate review in cases that result in convictions.

The standard Maine jury instruction regarding the use of deadly force as justified self-defense reads, in relevant part (the jury will only consider this portion of the instruction if they first find that the defendant used deadly force against the victim):

A person is justified in using deadly force upon another person when:

  1. he reasonably believes that the other person is about to use unlawful, deadly force against him; and
  2. he reasonably believes that deadly force is necessary to defend himself.

A person is never justified in using deadly force if he provokes the encounter leading to the use of deadly force or if he knows that he can retreat from the encounter with complete safety.

Because the evidence generates an issue of whether the defendant acted in self-defense, to support a murder conviction, the state must prove beyond a reasonable doubt, that:

  1. With a purpose to cause physical harm to another person, the defendant provoked the encounter, or
  2. The defendant knew he could retreat from the encounter with the deceased in complete safety, or
  3. The defendant knew that his use of deadly force was not necessary to defend himself.

— Maine Jury Instruction Manual (2013 Ed.), Section 6-61. Donald G. Alexander

A couple of comments are noteworthy. First, “deadly force” does not only denote force that causes death, but also includes force that causes serious bodily injury (that term is further defined in The Maine Criminal Code to include injury that requires a period of convalescence among more serious and more clearly defined maladies). The judge also provides this definition in his instructions. Second, note the use of the word “reasonably”. Whimsical or irrational beliefs attributed to the defendant do not suffice. The jury must make an objective judgment of what is or is not reasonable based upon the evidence produced during the trial phase. If they find the defendant’s subjective belief(s) objectively unreasonable, either his calculation of the posed threat or the degree of force he thought necessary to employ, the verdict is guilty. Third, the “retreat in complete safety” clause does not apply in cases in which the defendant is on his own property. Fourth, although acquitted of murder, the defendant may be convicted of manslaughter if the jury finds the defendant’s beliefs to be recklessly held (although subjectively believed by him).

The intricacies of the law of self-defense vary from case to case, but the foregoing provides a basic foundation of how the law of self-defense works as a justification defense in Maine in the trial phase of a murder case. This column is not intended to be a comprehensive review of the law of self-defense in Maine or anywhere else and it should not be construed as such.

I will do a follow up column next week on the “Stand Your Ground Law” and have some comments on the criminal justice aspects (not the politics) of the George Zimmerman/Trayvon Martin case.

For a more extensive and comprehensive analysis of the law of self-defense and other aspects of Maine Criminal Law, you can contact me for a free consultation at NICHOLS & CHURCHILL, PA at 207-879-4000. I’m in The Time & Temperature Building, 477 Congress Street, Portland, Maine 04101.

Read Self-Defense – Part 2: Stand Your Ground – Zimmerman / Martin Case

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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