September 8, 2025 • 15 mins
Welcome back to the Bar Exam Toolbox podcast! In this episode we explain the legal concepts of self-defense and defense of others, focusing on their importance in criminal law and in bar exam scenarios.
In this episode, we discuss:
- Self-defense: rules and elements
- Imperfect self-defense
- Defense of others: rules and elements
- Two hypothetical scenarios from previous California bar exams
Resources:
- "Listen and Learn" series (https://barexamtoolbox.com/bar-exam-toolbox-podcast-archive-by-topic/bar-exam-toolbox-podcast-explaining-individual-mee-and-california-bar-essay-questions/#listen-learn)
- California Bar Examination – Essay Questions and Selected Answers, February 2008 (https://nwculaw.edu/pdf/bar/February%202008%20Essays%20and%20Sample%20Answers.pdf)
- California Bar Examination – Essay Questions and Selected Answers, February 2006 (https://nwculaw.edu/pdf/bar/February%202006%20Essays%20and%20Sample%20Answers.pdf)
Download the Transcript
(https://barexamtoolbox.com/episode-324-listen-and-learn-self-defense-and-defense-of-others/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:02):
Welcome to the Bar Exam Toolbox podcast.
Today, as part of our "Listen and Learn"series, we are discussing criminal law.
Specifically, we'll be tacklingtwo major justification defenses
- self-defense and defense of others.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
(00:23):
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review or rating on your favorite
listening app, and check out our sisterpodcast, the Law School Toolbox podcast.
(00:43):
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
Welcome back to the"Listen and Learn" series!
(01:03):
Today we are diving into criminallaw, specifically self-defense
and defense of others.
These justification defenses areabsolutely crucial to understand
for the bar exam and your lawschool exams, as they appear
frequently in criminal law questions.
They're also fascinating, because theydeal with intense human situations
(01:24):
where split second decisions canhave life altering consequences.
So let's start with the basics.
Both self-defense and defense ofothers are justification defenses.
A justification defense essentially says,"Yes, I did the act, but I was justified
in doing so, so I should not be foundguilty of a crime." Unlike other defenses,
(01:47):
which might argue there was no wrongdoing,or perhaps acknowledge wrongdoing but
argue the defendant shouldn't be heldresponsible, justification defenses
assert that the action was the rightthing to do under the circumstances.
Self-defense is probably themost common justification defense
you'll encounter on an exam.
So, what exactly is self-defense?
(02:09):
Well, first, it's importantto know that self-defense is
a complete defense to a crime.
That means if you claim self-defenseand are successful, you should
be fully acquitted, not justfound guilty of a lesser offense.
It's a powerful defense.
But of course there are specificelements that must be met in a
self-defense claim, and those elementsdiffer depending on whether the
(02:30):
defendant used deadly or non-deadlyforce while committing the crime.
Let's start with non-deadly force.
For non-deadly force, the use of forceis justified when, [1] the defendant
reasonably believes; [2] that he is inimminent danger of being harmed; and [3]
the amount of force used is proportionalto the physical harm threatened.
(02:54):
So reasonable belief, imminentdanger, and proportional force.
That last part is really important- the force used must be reasonably
related to the threatened harmwhich the defendant seeks to avoid.
You can't stab someone forthreatening to shove you in line
at the grocery store, for example.
Now for deadly force, thestakes are obviously higher.
(03:15):
The use of deadly force is justifiedwhen, [1] the defendant kills another
based on a reasonable belief; [2] thathe was in imminent danger of being
killed or suffering great bodily injury;and [3] the use of deadly force was
necessary to defend against the danger.
You might be thinking thoserules sound really similar.
They do, but there are importantdifferences you must keep straight.
(03:40):
For deadly force, the threat must be oneof death or great bodily injury, not just
any harm.And the use of deadly force mustbe necessary, not just proportionate.
There can't be other reasonableoptions available to avoid the harm.
Now, this is where itgets a bit more complex.
In a minority of jurisdictions,there's what's called a duty to retreat
(04:02):
before deadly force may be used.
In these jurisdictions, to justify deadlyforce in self-defense, the defendant
must show either, a) there was noopportunity to retreat; or b) retreat
could not have been accomplished safely.
However, even in duty to retreatjurisdictions, there is no duty
to retreat if the defendantwas attacked in their own home.
(04:24):
This is sometimes calledthe Castle Doctrine.
Your home is your castle andyou don't have to flee from it,
even if you could do so safely.
Homes are sort of sacred in the U.S., andyour rights in and around them are often
substantially higher than in other places.
Okay, we've covered typicalself-defense situations.
But what if you started the fight?
(04:44):
Does self-defense go out thewindow if you started it?
The answer is "no".
You can still argueself-defense, but the rules are
understandably different for you.
If you're the aggressor - the personwho initiated the altercation - you
can only use force in self-defense if,a) you withdraw from the altercation
and communicate such intent; or b)the other person suddenly escalates
(05:08):
the fight with deadly forceand withdrawal is not possible.
So if you pick a fist fight withsomeone, but then walk away saying,
"I'm done, I don't want to fightanymore", and they pull a knife - you
may be justified in using force todefend yourself, even though you
started the initial confrontation.
We're about to get into a hypotheticalto seal in some of these rules,
(05:30):
but before we do, let's talkabout imperfect self-defense.
Rather than being a complete defense,imperfect self-defense is a mitigating
defense to murder that can reduce amurder charge to voluntary manslaughter.
Imperfect self-defense is applicablewhen the defendant kills another
based on a good faith belief that, [1]the defendant was in imminent danger
(05:50):
of being killed or suffering greatbodily injury; and [2] the use of
deadly force was necessary to defendagainst the danger; but [3] at least
one of those beliefs was unreasonable.
For example, if someone genuinelybelieved their life was in danger, but
that belief was objectively unreasonableunder the circumstances, they might
(06:11):
have an imperfect self-defense claim.
I want to note that not all courtsallow imperfect self-defense to
be applied in situations where thedefendant was defending another person.
Okay, that was a lot of law.
It's hard to really learn these rulesunless we see them play out in context.
So let's look at a hypo before wecover the rules for defense of others.
(06:32):
This hypo was adapted from theFebruary 2008 California bar exam,
so it's a great example of a questionyou should be preparing to answer.
Here's the hypo:
"Dan's neighborhood was overrun bytwo gangs, the Reds and the Blues.
Vic, one of the Reds, tried torecruit Dan to join his gang.
When Dan refused, Vic said he couldn'tbe responsible for Dan's safety.
(06:56):
After threatening Dan for severalweeks, Vic backed into an alley,
showed him a knife, and said, 'Thinkcarefully about your decision.
Your deadline is comingfast.' Dan was terrified.
He began carrying a gun for protection.
A week later, Dan saw Vic walkingwith his hand under his jacket.
Afraid that Vic might be about tostab him, Dan shot and killed Vic.
(07:20):
Dan was arrested and charged with murder.
Can he successfully raisea claim of self-defense?
Discuss."
What do you think?
Did Dan act in self-defense?
Remember, start with the law.
What is the rule thatwe are applying here?
Since Dan shot and killed Vic, we need tolook at the rules for the use of deadly
force . In case you need a refresher,the use of deadly force is justified
(07:42):
when, [1] the defendant kills anotherbased on a reasonable belief; [2] that
he was in imminent danger of beingkilled or suffering great bodily injury;
and [3] the use of deadly force wasnecessary to defend against the danger.
What do you think?
Did Dan have a reasonable belief that hewas in imminent danger of being killed
or suffering a great bodily injury?
(08:02):
I think he probably does.
Dan will argue that hisneighborhood was run by gangs
and is inherently very dangerous.
Vic himself was a gang member and hadthreatened Dan when Dan refused Vic's
attempt to recruit him into the gang.
Ultimately, Vic backed Dan into analley, pulled a knife on him, and
again threatened him, this timesaying his deadline was coming fast.
(08:23):
All of that taken together, especiallyVic's talking about Dan's impending
deadline and walking with his hand underhis jacket gives Dan a reasonable belief
Vic was intending to kill Dan, and soon.
So, what about the third factor?
Was Dan's use of deadly force necessaryto defend against that danger?
Dan will argue that when he saw Vic onthe street with his hand under his jacket
(08:47):
and after everything that had happened,he was terrified and believed Vic might
be about to stab him with that same knife.
To him, it seemed like a series ofevents culminating in an imminent threat.
Now, there is a weakness to Dan'sdefense, and that is that he
carried around a gun for a week,essentially preparing to shoot Vic.
The prosecution may argue that Dan is notentitled to self-defense because he was
(09:10):
under no clear threat when he shot Vic.
I think Dan wins the day here, but youshould contend with the weakness of this
case in your answer, and you may come toa different conclusion, and that's okay.
Just make sure to show your work.
Now, there is one more thingwe need to address in this hypo
to have a complete answer, andthat is imperfect self-defense.
Remember, imperfect self-defense reducesa murder charge to voluntary manslaughter.
(09:34):
Imperfect self-defense applies whenthe defendant kills another based
on a good faith belief that, [1]the defendant was in imminent danger
of being killed or suffering greatbodily injury; and [2] the use of
deadly force was necessary to defendagainst the danger; but [3] at least
one of those beliefs was unreasonable.
(09:54):
So, this defense is a good one forDan if his fear is found not to
be reasonable, but that his beliefthat he was in imminent danger and
needed to act was in good faith.
Given the timing of his actions, hiscarrying of a gun, and the lack of a true,
clear threat from Vic in that moment,this may not be Dan's strongest argument.
I hope that hypo helped yougrasp self-defense more fully.
(10:17):
We still need to discuss defenseof others, so let's move on.
First, note that the samegeneral rules for self-defense
apply to the defense of others.
Most jurisdictions use one of two rulesto evaluate defense of others claims,
so we'll go over those rules now.
First is the "step into the shoes" rule.
(10:37):
Under this approach, the defendantsteps into the shoes of the person
being attacked, and may use force ifthe person being attacked could have
themselves acted in self-defense.
Basically, it's self-defense,but another person is involved.
The second approach is the"reasonable appearance" rule.
Here, the defendant can use forceif he reasonably but mistakenly
(10:59):
believed the person being attackedhad the right to act in self-defense.
This rule is more lenient because itfocuses on what the defendant reasonably
believed, not what was actually happening.
It allows for mistake.
Now let's analyze another hypothetical tosee how these rules play out in practice.
This hypo was from the February2006 California bar exam:
(11:22):
"Deft saw Oscar, a uniformed policeofficer, attempting to arrest
Friend, who was resisting arrest.
Believing that Oscar was arrestingFriend unlawfully, Deft struck
Oscar in an effort to aid Friend.
Both Friend and Deft fled.
The next day, as a result of Oscar'sprecise description of Deft, Paula,
(11:43):
another police officer, foundDeft on the street and arrested
him for assault and battery.
Oscar identified Deft as his assailant.
Deft was then charged with assaultand battery of a police officer.
Thereafter, he was arraigned.
How should a judge rule on Deft'smotion for an instruction to the
jury that his assault was justifiedon the basis of defense of another?
(12:06):
Discuss."
Well, what do you think?
This scenario is pretty interestingwhen we analyze it through these two
different rules for defense of others.
Let me break it down.
Under the "step into the shoes" rule,Deft's position is pretty shaky.
He can only claim defense ofothers if Friend himself had
the right to resist arrest.
That is, when Deft steps intoFriend's shoes, he inherits these
(12:29):
same limitations that Friend has.
Since Oscar was a uniformed policeofficer, making an arrest, Friend
generally wouldn't have had the right toresist, unless the arrest was unlawful.
Even if Friend believed the arrest wasunlawful, he still doesn't have the
right to physically resist a uniformedofficer, unless it is clear that there is
no legal basis whatsoever for the arrest.
(12:52):
The facts do not show the circumstancesof why or how Oscar was making the arrest.
It would seem that Deft might have adefense if, for example, Oscar were
conducting the arrest in an extremelyphysically abusive manner and was
clearly unwarranted in doing so.
However, there are no facts to indicatethat Oscar was acting improperly, and a
(13:13):
court will deny Deft's motion to instructthe jury that Deft's assault was justified
on the basis of defense of another.
Now, looking at the "reasonableappearance" rule, Deft's case is
slightly better, but still problematic.
This rule asks whether Deftreasonably believed Friend had
the right to defend himself.
The key word here is
(13:34):
"reasonably".
Given that Oscar was in uniform, which
Deft clearly saw, it would be hard to argue that
Deft's belief was reasonable.
Courts generally don't considerit reasonable for bystanders to
intervene in arrests being conductedby identifiable police officers.
In a courtroom, the judge would almostcertainly deny Deft's motion for a
(13:54):
jury instruction on defense of others.
The visual evidence of Oscar's uniformcreates a strong presumption that both
Friend and Deft should have compliedwith the arrest procedure and challenged
its legality later through proper legalchannels, not through physical resistance.
In Deft's situation, absent additionalextenuating facts, it's hard to argue
(14:17):
that Deft was justified in striking Oscarin an effort to aid Friend, even if Deft
believed reasonably or unreasonably thatOscar was arresting Friend unlawfully.
Alright, that's all wehave time for today.
Thank you for parsing through somecriminal procedure with me, and I hope
you feel more confident in your abilityto analyze these justification defenses.
(14:39):
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
Lee and Alison at lee@barexamtoolbox.comor alison@barexamtoolboxcom.
(15:01):
Or you can always contact us via ourwebsite form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today, as part of our "Listen and Learn"series, we are discussing criminal law.
Specifically, we'll be tacklingtwo major justification defenses
- self-defense and defense of others.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
(00:23):
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review or rating on your favorite
listening app, and check out our sisterpodcast, the Law School Toolbox podcast.
(00:43):
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
Welcome back to the"Listen and Learn" series!
(01:03):
Today we are diving into criminallaw, specifically self-defense
and defense of others.
These justification defenses areabsolutely crucial to understand
for the bar exam and your lawschool exams, as they appear
frequently in criminal law questions.
They're also fascinating, because theydeal with intense human situations
(01:24):
where split second decisions canhave life altering consequences.
So let's start with the basics.
Both self-defense and defense ofothers are justification defenses.
A justification defense essentially says,"Yes, I did the act, but I was justified
in doing so, so I should not be foundguilty of a crime." Unlike other defenses,
(01:47):
which might argue there was no wrongdoing,or perhaps acknowledge wrongdoing but
argue the defendant shouldn't be heldresponsible, justification defenses
assert that the action was the rightthing to do under the circumstances.
Self-defense is probably themost common justification defense
you'll encounter on an exam.
So, what exactly is self-defense?
(02:09):
Well, first, it's importantto know that self-defense is
a complete defense to a crime.
That means if you claim self-defenseand are successful, you should
be fully acquitted, not justfound guilty of a lesser offense.
It's a powerful defense.
But of course there are specificelements that must be met in a
self-defense claim, and those elementsdiffer depending on whether the
(02:30):
defendant used deadly or non-deadlyforce while committing the crime.
Let's start with non-deadly force.
For non-deadly force, the use of forceis justified when, [1] the defendant
reasonably believes; [2] that he is inimminent danger of being harmed; and [3]
the amount of force used is proportionalto the physical harm threatened.
(02:54):
So reasonable belief, imminentdanger, and proportional force.
That last part is really important- the force used must be reasonably
related to the threatened harmwhich the defendant seeks to avoid.
You can't stab someone forthreatening to shove you in line
at the grocery store, for example.
Now for deadly force, thestakes are obviously higher.
(03:15):
The use of deadly force is justifiedwhen, [1] the defendant kills another
based on a reasonable belief; [2] thathe was in imminent danger of being
killed or suffering great bodily injury;and [3] the use of deadly force was
necessary to defend against the danger.
You might be thinking thoserules sound really similar.
They do, but there are importantdifferences you must keep straight.
(03:40):
For deadly force, the threat must be oneof death or great bodily injury, not just
any harm.And the use of deadly force mustbe necessary, not just proportionate.
There can't be other reasonableoptions available to avoid the harm.
Now, this is where itgets a bit more complex.
In a minority of jurisdictions,there's what's called a duty to retreat
(04:02):
before deadly force may be used.
In these jurisdictions, to justify deadlyforce in self-defense, the defendant
must show either, a) there was noopportunity to retreat; or b) retreat
could not have been accomplished safely.
However, even in duty to retreatjurisdictions, there is no duty
to retreat if the defendantwas attacked in their own home.
(04:24):
This is sometimes calledthe Castle Doctrine.
Your home is your castle andyou don't have to flee from it,
even if you could do so safely.
Homes are sort of sacred in the U.S., andyour rights in and around them are often
substantially higher than in other places.
Okay, we've covered typicalself-defense situations.
But what if you started the fight?
(04:44):
Does self-defense go out thewindow if you started it?
The answer is "no".
You can still argueself-defense, but the rules are
understandably different for you.
If you're the aggressor - the personwho initiated the altercation - you
can only use force in self-defense if,a) you withdraw from the altercation
and communicate such intent; or b)the other person suddenly escalates
(05:08):
the fight with deadly forceand withdrawal is not possible.
So if you pick a fist fight withsomeone, but then walk away saying,
"I'm done, I don't want to fightanymore", and they pull a knife - you
may be justified in using force todefend yourself, even though you
started the initial confrontation.
We're about to get into a hypotheticalto seal in some of these rules,
(05:30):
but before we do, let's talkabout imperfect self-defense.
Rather than being a complete defense,imperfect self-defense is a mitigating
defense to murder that can reduce amurder charge to voluntary manslaughter.
Imperfect self-defense is applicablewhen the defendant kills another
based on a good faith belief that, [1]the defendant was in imminent danger
(05:50):
of being killed or suffering greatbodily injury; and [2] the use of
deadly force was necessary to defendagainst the danger; but [3] at least
one of those beliefs was unreasonable.
For example, if someone genuinelybelieved their life was in danger, but
that belief was objectively unreasonableunder the circumstances, they might
(06:11):
have an imperfect self-defense claim.
I want to note that not all courtsallow imperfect self-defense to
be applied in situations where thedefendant was defending another person.
Okay, that was a lot of law.
It's hard to really learn these rulesunless we see them play out in context.
So let's look at a hypo before wecover the rules for defense of others.
(06:32):
This hypo was adapted from theFebruary 2008 California bar exam,
so it's a great example of a questionyou should be preparing to answer.
Here's the hypo:
"Dan's neighborhood was overrun bytwo gangs, the Reds and the Blues.
Vic, one of the Reds, tried torecruit Dan to join his gang.
When Dan refused, Vic said he couldn'tbe responsible for Dan's safety.
(06:56):
After threatening Dan for severalweeks, Vic backed into an alley,
showed him a knife, and said, 'Thinkcarefully about your decision.
Your deadline is comingfast.' Dan was terrified.
He began carrying a gun for protection.
A week later, Dan saw Vic walkingwith his hand under his jacket.
Afraid that Vic might be about tostab him, Dan shot and killed Vic.
(07:20):
Dan was arrested and charged with murder.
Can he successfully raisea claim of self-defense?
Discuss."
What do you think?
Did Dan act in self-defense?
Remember, start with the law.
What is the rule thatwe are applying here?
Since Dan shot and killed Vic, we need tolook at the rules for the use of deadly
force . In case you need a refresher,the use of deadly force is justified
(07:42):
when, [1] the defendant kills anotherbased on a reasonable belief; [2] that
he was in imminent danger of beingkilled or suffering great bodily injury;
and [3] the use of deadly force wasnecessary to defend against the danger.
What do you think?
Did Dan have a reasonable belief that hewas in imminent danger of being killed
or suffering a great bodily injury?
(08:02):
I think he probably does.
Dan will argue that hisneighborhood was run by gangs
and is inherently very dangerous.
Vic himself was a gang member and hadthreatened Dan when Dan refused Vic's
attempt to recruit him into the gang.
Ultimately, Vic backed Dan into analley, pulled a knife on him, and
again threatened him, this timesaying his deadline was coming fast.
(08:23):
All of that taken together, especiallyVic's talking about Dan's impending
deadline and walking with his hand underhis jacket gives Dan a reasonable belief
Vic was intending to kill Dan, and soon.
So, what about the third factor?
Was Dan's use of deadly force necessaryto defend against that danger?
Dan will argue that when he saw Vic onthe street with his hand under his jacket
(08:47):
and after everything that had happened,he was terrified and believed Vic might
be about to stab him with that same knife.
To him, it seemed like a series ofevents culminating in an imminent threat.
Now, there is a weakness to Dan'sdefense, and that is that he
carried around a gun for a week,essentially preparing to shoot Vic.
The prosecution may argue that Dan is notentitled to self-defense because he was
(09:10):
under no clear threat when he shot Vic.
I think Dan wins the day here, but youshould contend with the weakness of this
case in your answer, and you may come toa different conclusion, and that's okay.
Just make sure to show your work.
Now, there is one more thingwe need to address in this hypo
to have a complete answer, andthat is imperfect self-defense.
Remember, imperfect self-defense reducesa murder charge to voluntary manslaughter.
(09:34):
Imperfect self-defense applies whenthe defendant kills another based
on a good faith belief that, [1]the defendant was in imminent danger
of being killed or suffering greatbodily injury; and [2] the use of
deadly force was necessary to defendagainst the danger; but [3] at least
one of those beliefs was unreasonable.
(09:54):
So, this defense is a good one forDan if his fear is found not to
be reasonable, but that his beliefthat he was in imminent danger and
needed to act was in good faith.
Given the timing of his actions, hiscarrying of a gun, and the lack of a true,
clear threat from Vic in that moment,this may not be Dan's strongest argument.
I hope that hypo helped yougrasp self-defense more fully.
(10:17):
We still need to discuss defenseof others, so let's move on.
First, note that the samegeneral rules for self-defense
apply to the defense of others.
Most jurisdictions use one of two rulesto evaluate defense of others claims,
so we'll go over those rules now.
First is the "step into the shoes" rule.
(10:37):
Under this approach, the defendantsteps into the shoes of the person
being attacked, and may use force ifthe person being attacked could have
themselves acted in self-defense.
Basically, it's self-defense,but another person is involved.
The second approach is the"reasonable appearance" rule.
Here, the defendant can use forceif he reasonably but mistakenly
(10:59):
believed the person being attackedhad the right to act in self-defense.
This rule is more lenient because itfocuses on what the defendant reasonably
believed, not what was actually happening.
It allows for mistake.
Now let's analyze another hypothetical tosee how these rules play out in practice.
This hypo was from the February2006 California bar exam:
(11:22):
"Deft saw Oscar, a uniformed policeofficer, attempting to arrest
Friend, who was resisting arrest.
Believing that Oscar was arrestingFriend unlawfully, Deft struck
Oscar in an effort to aid Friend.
Both Friend and Deft fled.
The next day, as a result of Oscar'sprecise description of Deft, Paula,
(11:43):
another police officer, foundDeft on the street and arrested
him for assault and battery.
Oscar identified Deft as his assailant.
Deft was then charged with assaultand battery of a police officer.
Thereafter, he was arraigned.
How should a judge rule on Deft'smotion for an instruction to the
jury that his assault was justifiedon the basis of defense of another?
(12:06):
Discuss."
Well, what do you think?
This scenario is pretty interestingwhen we analyze it through these two
different rules for defense of others.
Let me break it down.
Under the "step into the shoes" rule,Deft's position is pretty shaky.
He can only claim defense ofothers if Friend himself had
the right to resist arrest.
That is, when Deft steps intoFriend's shoes, he inherits these
(12:29):
same limitations that Friend has.
Since Oscar was a uniformed policeofficer, making an arrest, Friend
generally wouldn't have had the right toresist, unless the arrest was unlawful.
Even if Friend believed the arrest wasunlawful, he still doesn't have the
right to physically resist a uniformedofficer, unless it is clear that there is
no legal basis whatsoever for the arrest.
(12:52):
The facts do not show the circumstancesof why or how Oscar was making the arrest.
It would seem that Deft might have adefense if, for example, Oscar were
conducting the arrest in an extremelyphysically abusive manner and was
clearly unwarranted in doing so.
However, there are no facts to indicatethat Oscar was acting improperly, and a
(13:13):
court will deny Deft's motion to instructthe jury that Deft's assault was justified
on the basis of defense of another.
Now, looking at the "reasonableappearance" rule, Deft's case is
slightly better, but still problematic.
This rule asks whether Deftreasonably believed Friend had
the right to defend himself.
The key word here is
(13:34):
"reasonably".
Given that Oscar was in uniform, which
Deft clearly saw, it would be hard to argue that
Deft's belief was reasonable.
Courts generally don't considerit reasonable for bystanders to
intervene in arrests being conductedby identifiable police officers.
In a courtroom, the judge would almostcertainly deny Deft's motion for a
(13:54):
jury instruction on defense of others.
The visual evidence of Oscar's uniformcreates a strong presumption that both
Friend and Deft should have compliedwith the arrest procedure and challenged
its legality later through proper legalchannels, not through physical resistance.
In Deft's situation, absent additionalextenuating facts, it's hard to argue
(14:17):
that Deft was justified in striking Oscarin an effort to aid Friend, even if Deft
believed reasonably or unreasonably thatOscar was arresting Friend unlawfully.
Alright, that's all wehave time for today.
Thank you for parsing through somecriminal procedure with me, and I hope
you feel more confident in your abilityto analyze these justification defenses.
(14:39):
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If you have any questions or comments,please don't hesitate to reach out to
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(15:01):
Or you can always contact us via ourwebsite form at BarExamToolbox.com.
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