This is a preview of how your content will look on export. To export the complete content in DOC format, click the blue export button in the upper right corner of this page.
IV. Justification and Excuse
  • 1 IV.A. Justification

    • 1.1 IV.A.i. Self-Defense

      In the next few sections, we will explore situations in which the commission of what might otherwise be a crime does not result in punishment. Broadly speaking, the doctrines in this area of criminal law are grouped into “justification” and “excuse.” In this section, we will discuss the first kind of justification: self-defense.

      Self-defense justifies a crime—more than excusing it, it affirms that what would otherwise be a criminal act is in fact desirable in a given situation. In cases of legal self-defense, our system treats a person who kills or injures as morally right, even when they kill intentionally.

      Legalizing assault, killing, or other forceful actions inevitably devolves the state’s usual monopoly on the legitimate use of force, to individual persons capable of abusing it. Thus, legal self-defense raises several concerns. Should self-defense be a last resort? Must the defender respond with minimal force, or is any amount of force legitimate? Must the threat be actual, subjective, or objectively reasonable?

      Different jurisdictions have created different systems. Compare the questions raised by situations such as ongoing abusive domestic relationships or an encounter with a stranger on the subway. As you read the following cases, consider the criminal system’s difficulty in managing individuals’ legal use of force, and notice how the law attempts to channel and contain that Pandora’s box.

      • 1.1.1 People v. Goetz

        1
        68 N.Y.2d 96 (1986)
        2
        The People of the State of New York, Appellant,
        v.
        Bernhard Goetz, Respondent.
        3

        Court of Appeals of the State of New York.

        4
        Argued May 28, 1986.
        5
        Decided July 8, 1986.
        6

         

        7

        Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.

        8

        Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.

        9

        Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.

        10

        [99] Chief Judge WACHTLER.

        11

        A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.

        12
        I.
        13

         

        14

        The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to [100] properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant's conduct are to be resolved by the trial jury.

        15

        On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

        16

        Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.

        17

        It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.

        18

        All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently [101] taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.

        19

        While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.

        20

        On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

        21

        According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you," to which he replied "fine". Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars". Goetz stated that he knew from the smile on Canty's face that they wanted to "play with me". Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".

        22

        Goetz then established "a pattern of fire," deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible". When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run". Goetz then turned to his right to "go after the other two". One of these two "tried to run through the wall of the train, but * * * he had [102] nowhere to go". The other youth (Cabey) "tried pretending that he wasn't with [the others]" by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of". Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said `[y]ou seem to be all right, here's another'", and he then fired the shot which severed Cabey's spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again."

        23
        II.
        24

         

        25

        After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

        26

        Several weeks after the Grand Jury's action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to [103] testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.

        27

        On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.[1]

        28

        On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor's instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).

        29

        On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey's hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]". The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to [104] dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 N.Y.2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.

        30

        In an order dated January 21, 1986, Criminal Term granted Goetz's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz's contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz's conduct was that of a "reasonable man in [Goetz's] situation". The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant's state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.[2]

        31

        Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony.

        32

        On appeal by the People, a divided Appellate Division [105] affirmed Criminal Term's dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term's reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant's subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor's charge did not adequately apprise the grand jurors of the need to consider Goetz's own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term's reliance on Pelchat as an alternate ground for dismissal.

        33

        Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant's subjective beliefs and whether a reasonable person in defendant's situation would have had such beliefs. Accordingly, he found no error in the prosecutor's introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality's adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.

        34

        Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor's charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.

        35
        III.
        36

         

        37

        Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 N.Y.2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] [106] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).[3]

        38

        Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *[4] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).

        39

        Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.[5]

        40

        Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 N.Y.2d 36, 38). The prosecutor properly instructed the grand jurors to [107] consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.

        41

        When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes". The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant's conduct was that of a reasonable man in the defendant's situation". It is this response by the prosecutor — and specifically his use of "a reasonable man" — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division's plurality opinion, because section 35.15 uses the term "he reasonably believes", the appropriate test, according to that court, is whether a defendant's beliefs and reactions were "reasonable to him". Under that reading of the statute, a jury which believed a defendant's testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant's situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably" in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

        42

        Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend [108] a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished".

        43

        In Shorter v People (2 N.Y. 193), we emphasized that deadly force could be justified under the statute even if the actor's beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant's own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).

        44

        In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes,[6] and the "reasonable ground" requirement was maintained.

        45

        The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 N.Y. 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury" (see also, People v Ligouri, 284 N.Y. 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple" would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 N.Y. 240, 244), [109] we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked."

        46

        Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger", and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing" (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned" (id., at 814).

        47

        In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.

        48

        The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model [110] Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse" to prevail on a self-defense claim (emphasis added). If the defendant's belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).

        49

        The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief" rather than just a "belief" would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit., at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).

        50

        New York did not follow the Model Penal Code's equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably" before "believes".

        51

        The plurality below agreed with defendant's argument that the change in the statutory language from "reasonable ground," used prior to 1965, to "he reasonably believes" in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the [111] insertion of "reasonably". Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes" by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant's belief was "reasonable to him," as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant's own perceptions could completely exonerate him from any criminal liability.

        52

        We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

        53

        We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality's interpretation, as the dissenters below recognized, excises the impact of the word "reasonably". This same conclusion was recently reached in Justice Levine's decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department's decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).

        54

        The change from "reasonable ground" to "reasonably believes" is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 N.Y.2d 274; 7 Zett, New York Criminal Practice ¶ 65.3). [112] Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably" to incorporate the long-standing requirement of "reasonable ground" for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).

        55

        The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes" was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes" with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).

        56

        Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted (see, e.g., People v Cantor, 36 N.Y.2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]" (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops" only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [113] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d, at pp 112-113, supra).

        57

        In People v Collice (41 N.Y.2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court's action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense" (id., at p 907). Numerous decisions from other States interpreting "reasonably believes" in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).

        58

        The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 N.Y.2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant" (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 N.Y. 237, 245; Communication Relating to Homicide, op. cit., at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds" for the defendant's belief.

        59

        Goetz's reliance on People v Rodawald (177 N.Y. 408) is [114] similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself" (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground" for his belief, and we upheld the trial court's refusal to charge the jury that the defendant's honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).

        60

        Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness" without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation" (see, e.g., People v Ligouri, 284 N.Y. 309, 316, supra; People v Lumsden, 201 N.Y. 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.

        61

        Accordingly, a jury should be instructed to consider this [115] type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.

        62

        The prosecutor's instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz's conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances" or "situation" and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 N.Y.2d 36, 38; People v Calbud, Inc., 49 N.Y.2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).

        63

        In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime". Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court's charge on justification should be, but they sufficiently apprised the [116] Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz's reactions were unreasonable and therefore excessive.

        64
        IV.
        65

         

        66

        Criminal Term's second ground for dismissal of the charges, premised upon the Daily News column and the police officer's statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 N.Y.2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant's guilt, he did not disclose the police officer's admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.

        67

        Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty's testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty's and Ramseur's testimony was perjurious (see, CPL 190.25 [5]), and [117] his conclusion that the testimony "strongly appeared" to be perjured is particularly inappropriate given the nature of the "evidence" he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.

        68

        Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz's own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.

        69

        Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.

        70

        Order reversed, etc.

        71

        [1] On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 N.Y.2d 609). The propriety of the resubmission order is not before us on this appeal.

        72

        [2] The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life." As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 N.Y.2d 541). Accordingly, had the prosecutor's instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.

        73

        [3] Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.

        74

        [4] Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating".

        75

        [5] While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat" requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity" requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).

        76

        [6] The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor's presence.

      • 1.1.2 Calvin Trillin, "The Color of Blood," The New Yorker, March 3, 2008

      • 1.1.3 State v. Kelly

        1
        97 N.J. 178 (1984)
        2
        478 A.2d 364
        3
        STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
        v.
        GLADYS KELLY, DEFENDANT-APPELLANT.
        4

        The Supreme Court of New Jersey.

        5
        Argued May 10, 1983.
        6
        Decided July 24, 1984.
        7

         

        8

        [186] Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph H. Rodriguez, Public Defender, attorney).

        9

        [187] Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L. Schneider, Essex County Prosecutor, attorney).

        10

        Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae American Civil Liberties Union of New Jersey and New Jersey Coalition for Battered Women (Frank Askin and Stephen M. Latimer, attorneys).

        11

        Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association (Nadine Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of Columbia bar, and Donald N. Bersoff, a member of the Maryland bar, of counsel).

        12

        The opinion of the Court was delivered by WILENTZ, C.J.

        13

        The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.

        14
        I.
        15

         

        16

        On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married [188] for seven years, during which time Ernest had periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he would kill her if she did not act.

        17

        Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.

        18

        Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.

        19

        Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.

        20
        II.
        21

         

        22

        The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened — a version that the jury could have accepted and, if they had, a version [189] that would make the proffered expert testimony not only relevant, but critical.

        23

        The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.

        24

        The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.

        25

        The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.

        26

        A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.

        27

        After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds [190] he was right next to her. Unsure of whether he had armed himself while she was looking for their daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away, but instead stabbed him.[1]

        28
        III.
        29

         

        30

        The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.

        31

        In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.[2] What has been revealed is [191] that the problem affects many more people than had been thought and that the victims of the violence are not only the battered family members (almost always either the wife or the children). There are also many other strangers to the family who feel the devastating impact, often in the form of violence, of the psychological damage suffered by the victims.

        32

        Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.[3]

        33

        While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state [192] of the law as reflected in statutes and cases, many commentators assert that a bias against battered women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing wife beating cases.[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895, 897-911 (1981).

        34

        Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).

        35

        As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.

        36

        As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological [193] abuse can have on a woman. The effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-woman's syndrome, defines the battered woman as one

        37
        who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [L. Walker, supra, at xv].
        38

         

        39

        According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.

        40

        Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.

        41

        Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.

        42

        Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering [194] male. During this period the man will often mix his pleas for forgiveness and protestations of devotion with promises to seek professional help, to stop drinking,[5] and to refrain from further violence. For some couples, this period of relative calm may last as long as several months, but in a battering relationship the affection and contrition of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.

        43

        The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).

        44

        Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial ...").

        45

        Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence [195] or strength of their battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.

        46

        In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.

        47

        Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.

        48

        In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.

        49

        Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.

        50

        Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband [196] only to have him pursue her and subject her to an even more brutal attack. D. Martin, supra, at 76-79.

        51

        The combination of all these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.

        52

        The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.

        53

        Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance — primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.

        54

        Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely [197] accepted by clinical psychologists. Applying this methodology to defendant (who was subjected to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and subject to the battered-woman's syndrome.

        55

        In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant beatings she endured.

        56
        IV.
        57

         

        58

        Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert testimony is relevant.

        59

        The present rules governing the use of force in self-defense are set out in the justification section of the Code of Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in self-defense. The use of such deadly force is not justifiable

        60
        unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].
        61

         

        62

        These principles codify decades of prior case law development of the elements of self-defense.[6] We focus here on the critical [198] requirement that the actor reasonably believe deadly force to be necessary to prevent death or serious bodily harm, for the proffer of expert testimony was argued to be relevant on this point.

        63

        Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).

        64

        While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is, honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law § 53, at 394 (1972).[7] The intent of the [199] drafters of the present Code was that a necessity to act should not give rise to a meritorious plea of self-defense where the defendant was unaware of that necessity. Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter cited as Commission Report]. Ultimately, of course, it is for the jury to determine if the defendant actually did believe in the necessity of acting with deadly force to prevent an imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).

        65

        Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the requirement that the defendant's belief be reasonable.[8]

        66

        Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide.[9] As [200] with the determination of the existence of the defendant's belief, the question of the reasonableness of this belief "is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at 316; see State v. Bess, supra, 53 N.J. at 16; State v. Fair, supra, 45 N.J. at 93; State v. Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here that for defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's belief was honest and reasonable. Rather, if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961).

        67

        With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to Gladys Kelly's claim of self-defense.

        68
        V.
        69

         

        70

        Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she certainly was not acting in self-defense.

        71

        The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account, it [201] cannot find she acted in self-defense. The expert testimony offered was directly relevant to one of the critical elements of that account, namely, what Gladys Kelly believed at the time of the stabbing, and was thus material to establish the honesty of her stated belief that she was in imminent danger of death.[10]

        72

        The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.) This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.

        73

        Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her premarital sexual conduct, were clearly efforts to impeach credibility.

        74

        As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's credibility. [202] Specifically, by showing that her experience, although concededly difficult to comprehend, was common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the jury understand that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from her husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's testimony about her state of mind (that is, that she honestly feared serious bodily harm) at the time of the stabbing.

        75

        On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome; the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v. Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).[11] Moreover, we [203] find that because this testimony was central to the defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be harmless error.[12]

        76

        [204] We also find the expert testimony relevant to the reasonableness of defendant's belief that she was in imminent danger of death or serious injury. We do not mean that the expert's testimony could be used to show that it was understandable that a battered woman might believe that her life was in danger when indeed it was not and when a reasonable person would not have so believed, for admission for that purpose would clearly violate the rule set forth in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be relevant solely to the honesty of defendant's belief, not its objective reasonableness. Rather, our conclusion is that the expert's testimony, if accepted by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life.

        77

        At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings" over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting, the use of fists), [205] that these physical assaults posed a risk of serious injury or death. When that regular pattern of serious physical abuse is combined with defendant's claim that the decedent sometimes threatened to kill her, defendant's statement that on this occasion she thought she might be killed when she saw Mr. Kelly running toward her could be found to reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's story of the prior beatings, if it believed her story of the prior threats, and, of course, if it believed her story of the events of that particular day.

        78

        The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave. To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.

        79

        Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when discussing an occasion when Mr. Kelly temporarily moved out of the [206] house, the State repeatedly asked Ms. Kelly: "You wanted him back, didn't you?" The implication was clear: domestic life could not have been too bad if she wanted him back. In its closing argument, the State trivialized the severity of the beatings, saying:

        80
        I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a bowl of cherries. We each and every person who takes a breath has problems. Defense counsel says bruised and battered. Is there any one of us who hasn't been battered by life in some manner or means?
        81

         

        82

        Even had the State not taken this approach, however, expert testimony would be essential to rebut the general misconceptions regarding battered women.

        83

        The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger. That is not at all, however, what this testimony is directly aimed at. It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.

        84

        Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard, to the reasons for [207] defendant's failure to leave her husband. Either the jury accepts or rejects that explanation and, based on that, credits defendant's stories about the beatings she suffered. No expert is needed, however, once the jury has made up its mind on those issues, to tell the jury the logical conclusion, namely, that a person who has in fact been severely and continuously beaten might very well reasonably fear that the imminent beating she was about to suffer could be either life-threatening or pose a risk of serious injury. What the expert could state was that defendant had the battered-woman's syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant's belief. Depending on its content, the expert's testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury's evaluation of the reasonableness of defendant's fear for her life.[13]

        85

        [208]

        86
        VI.
        87

         

        88

        Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56.[14]

        89

        [209] The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961). Thus, the proponent of expert testimony must demonstrate that testimony would "enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20 (App.Div. 1972).

        90

        As previously discussed, a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.[15]

        91

        The second requirement that must be met before expert testimony is permitted is a showing that the proposed expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable is of no assistance to anyone.

        92

        To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the testimony satisfies New Jersey's standard of acceptability for scientific [210] evidence. State v. Cavallo, supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525, 536 (1981)). The technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J. 343, 352 (1967)); State v. Hurd, supra, 86 N.J. at 536.

        93

        In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and the methodology used by the researchers in this area.[16] On the other hand, Dr. Veronen, the proffered expert, testified that the battered-woman's syndrome is acknowledged and accepted by practitioners and professors in the fields of psychology and psychiatry. Dr. Veronen also brought to the court's attention the findings of several researchers who have published reports confirming the presence of the battered-woman's syndrome. She further noted that the battered-woman's syndrome has [211] been discussed at several symposia since 1977, sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association.[17] Briefs submitted to this Court indicate that there are at least five books and almost seventy scientific articles and papers about the battered-woman's syndrome.

        94

        Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier indicate the presence of a growing field of study and research about the battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant scientific community.

        95

        Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at Ms. Kelly's trial, Dr. [212] Veronen had been an assistant professor at the medical school at the University of South Carolina for three years. Twenty percent of her time at the Universty was spent teaching, some of it on topics related to the battered-woman's syndrome, and 80% of her time was spent conducting research, most of it on the psychological reaction of women who are victims of violent assaults. She had spent two years studying the battered-woman's syndrome, with the goal of changing the patterns of fear and anxiety of battered women. Dr. Veronen is a clinical psychologist, licensed to practice in two states, and in that capacity had, by 1980, treated approximately thirty battered women and seen seventy others. Because these thirty women have several important characteristics in common with Ms. Kelly (the thirty women had all been in battering relationships for more than two years, were beaten more than six times, and were within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women who share Ms. Kelly's background.[18]

        96

        We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission. Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue cross-examination of Dr. [213] Veronen as well as to introduce such contrary testimony as the prosecutor sees fit. The transcript discloses that the prosecutor had concluded her cross-examination on Dr. Veronen's qualifications but had never been given the opportunity fully to cross-examine the expert on the reliability of this developing field of scientific knowledge. The possibility of such further cross-examination was foreclosed by the trial court when it ruled evidence of the syndrome was inadmissible because irrelevant. Furthermore, as noted above, the trial court never actually ruled whether Dr. Veronen qualified as an expert, finding this unnecessary because of his holding that the testimony would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.[19]

        97

        [214] Our conclusion, reversing and ordering a new trial, is based on the apparent unfairness in this case of the kind of limited remand that we ordered in State v. Sikora, supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring). Here a limited remand would be to the trial court to exercise its discretion, a very broad discretion, on the issue of the expert's qualifications and the reliability of the knowledge proffered. We do not know what conflicting expert testimony the prosecution would offer, but the entire scenario of a limited remand when the defendant has already been convicted and when the court whose discretion will largely determine the outcome of the limited remand has already excluded the evidence, with prosecution experts who might not have been called at the original trial, seems an artificial trial setting, and significantly less favorable to defendant than what might have occurred if the trial court had had the benefit of the views expressed herein at the time. Obviously there is no way to recreate the precise situation of the trial, but all things considered, we think fairness requires a new trial where all of these matters may be reconsidered.

        98
        VII.
        99

         

        100

        Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on appeal. Although our disposition of this case makes it unnecessary to [215] consider these issues, we dispose of them briefly to assist the trial court in the event they surface again at the new trial.

        101
        A.
        102

         

        103

        During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).

        104

        The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,[20] stating:

        105
        We will get involved with trials within trials — trying cases of sexual aggression. That daughter was not present at the time of the alleged stabbing by her mother of her stepfather. There has been no evidence indicating that the safety of the daughter was threatened on May 24.
        106

         

        107

        Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.

        108

        If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason, its limited added force might very well be outweighed [216] by the obvious prejudice injected into the case in the form of proof that decedent sexually abused his daughter. The testimony, however, has further relevance in that it very strongly supports the conclusion that the Kelly household was the scene of the batterings that would produce the battered-woman's syndrome. As our Legislature noted in its findings included in the Prevention of Domestic Violence Act, "there is a positive correlation between spouse abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical importance of the proof of the battered-woman's syndrome in this case, we are inclined to believe that, on balance, such testimony should have been admitted. We are aware that in the context of an appellate review, a decision of a trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v. Boratto, 80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super. 557 (App.Div. 1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless, absent any significant new factor bearing on this issue, the trial court on remand should allow the testimony, giving such appropriate instruction to the jury as will minimize the possibility of its prejudicial impact.

        109
        B.
        110

         

        111

        Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This claim is without merit.

        112

        Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned Ms. Kelly about her earlier conviction:

        113

        [217] Q. Mrs. Kelly, have you ever been convicted of a crime?

        A. Yes, once.

        Q. What were you convicted of?

        A. Conspiracy to robbery with some — two other peoples was involved —

        Q. You were convicted of conspiracy to commit robbery?

        A. Yes.

        Q. When was that?

        A. Nine years ago, I think.

        Q. 1971?

        A. Something like that. I was given three years probation....

        114

         

        115

        That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or referred to.

        116

        Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it could consider Ms. Kelly's conspiracy conviction:

        117
        The only reason you heard that testimony was not because if you find that she committed a crime in 1971, therefore she must have committed this crime with which she is charged. The only reason you may use that if you wish to is to affect her believability as a witness. That is the sole and exclusive purpose of hearing that and using that evidence.
        118

         

        119

        There was no error on this point.[21]

        120
        C.
        121

         

        122

        We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial. The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and make an inflammatory appeal to the jury, and used her opening statement [218] to suggest that Ms. Kelly's indictment was evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with in the same way as those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333 (1971). We note, however, that the trial court properly instructed the jury that the indictment is not proof of guilt, and our review of the closing statement does not reveal plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the role of defense counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039 (1963). Nor did the prosecutor's closing remarks exceed the wide latitude permitted counsel during summation. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969).

        123

        Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.

        124
        D.
        125

         

        126

        The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical abuse [219] of defendant by the decedent, the jury must be told that a finding of provocation may be premised on "a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to consider not only decedent's conduct and threats that night, but also his prior mistreatment of defendant." State v. Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial court's instruction should be changed.[22]

        127
        E.
        128

         

        129

        Ms. Kelly also contends that the sentence imposed — five years in state prison — was excessive. She asserts that imprisonment would result in a serious injustice that overrides the need to deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their mother at home.

        130

        The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to sentence [220] her to a minimum term for a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v. Roth, 95 N.J. 334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the "serious injustice" envisioned by the Criminal Code. Roth, supra, 95 N.J. at 358.[23]

        131

        HANDLER, J., concurring in part and dissenting in part.

        132

        The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical psychological condition referred to as the "battered women's syndrome." Therefore, I would rule that expert evidence of the battered women's syndrome is both competent and relevant as related to the defense of self-defense. Consequently, no further expert testimony or evidence concerning the admissibility [221] of this doctrine should be required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant's expert that defendant was suffering battered women's syndrome when she killed her husband. That testimony was unquestionably relevant to defendant's claim of self-defense. In addition, the evidence in this case indicates that repeated sexual and physical victimization of a woman's children may, in conjunction with her own abused treatment, contribute to the development of battered women's syndrome. I therefore concur in the majority's determination to allow on a retrial evidence of the decedent's sexual assaults upon defendant's daughter as related to the issue of the battered women's syndrome and defendant's defense of self-defense.

        133

        The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women's syndrome and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use of the battered women's syndrome in connection with her defense of self-defense. I would therefore not require this issue — the admissibility of the battered women's syndrome — to be tried again.

        134
        I
        135

         

        136

        This Court's opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered women's syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged physical and psychological abuse by their mates. Women suffering battered women's syndrome have low self-esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such battered women are dominated [222] by unshakeable fear, which often traps them into remaining with their battering mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently become so demoralized and degraded that they lapse into a psychological torpor, a state of "learned helplessness." Ante at 194-195, citing Walker, supra, at 75.

        137

        The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.

        138

        The Court's opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and, most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.

        139

        This Court's enlightened exposition of the battered women's syndrome, drawn from the record in this case lays a firm foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of particular [223] criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.

        140
        II
        141

         

        142

        Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).

        143

        The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully comprehended primarily by experts, persons who have special training and education in the particular field. Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence and education. In this case, it has been firmly established that the battered women's syndrome is a subject that is properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered women's syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate matter for elucidation through expert testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den. 62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo, supra, 88 N.J. at 518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961).

        144

        The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is permitted [224] is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge must be considered reliable by those who have professional training and responsibility in the field. Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State v. Cary, 49 N.J. 343, 352 (1967).

        145

        There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. State v. Cavallo, supra, 88 N.J. at 521.

        146

        These criteria for the admissibility of expert testimony relative to the battered women's syndrome have been met in this case. Because the battered women's syndrome is a relatively new field of research, only a few courts have had the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this field. See, e.g., State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312, 315 (1984) (en banc) (battered women's syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979) (remanding to trial court for further consideration of scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) [225] and State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise). In light of the compelling record that has been established in this case, I am persuaded of the soundness of those decisions that have concluded that the battered women's syndrome constitutes a valid subject of expert testimony. I am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.

        147

        The record before us, based on expert testimony, including scientific writings, further reveals that the battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the field, testified that the battered woman's syndrome is acknowledged and accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized, expanding field of study and research about the battered woman's syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature was also made evident on this appeal — over 70 scientific articles and several books have been published on the subject. Dr. Veronen further testified that, since 1977, the battered women's syndrome has been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of a premise by the scientific community).

        148

        Public policy considerations complement these traditional modes for determining whether a particular subject matter is reliable and within the purview of expert knowledge. An [226] emerging public policy acknowledges the battered women's syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement community, have begun to come to grips with the forces that generate and perpetuate familial and domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the battered women's syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably aware of the burgeoning expert opinion and literature that recognized the battered women's syndrome as both a contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends to the national level as well, as evidenced, for example, by the U.S. Attorney General's formation, in September 1983, of a task force on family violence "to review [the] basic assumptions that underpin the handling of [domestic] violence cases." Statement of Attorney General William French Smith, September 19, 1983.

        149

        The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516. In this case, as recognized by the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition of battered women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the receipt of expert testimony concerning the battered women's syndrome.

        150

        [227] In addition to her general knowledge of the battered women's syndrome, Dr. Veronen was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research and the application of this methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an abused woman suffering from battered women's syndrome when she fatally stabbed her husband.

        151

        In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified expert witness, that expert testimony concerning the battered women's syndrome is now generally accepted and regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of particular criminal cases has been shown. The battered women's syndrome is sufficiently reliable to authorize its admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial of this case.

        152
        III
        153

         

        154

        I concur in the majority's determination that the testimony of defendant's seventeen-year-old daughter, Edith Cannon, concerning the decedent's beatings of Gladys and her children, should have been admitted into evidence at the trial. Ante at 215-216. Defendant's daughter was also prepared to testify that she had been sexually abused by decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of Evidence Rule 4, excluded Edith's testimony that she had told her mother about the decedent's sexual assaults upon her.

        155

        The expert evidence fairly shows that such circumstances — the physical and sexual abuse of battered women's children — cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in 75% of the battering [228] relationships that eventuate in homicide, and frequently constitutes a "critical factor in the tension * * * before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child abuse is relevant in a case in which the battered women's syndrome is a material issue.

        156

        To reiterate, expert testimony on the battered women's syndrome and the applicability of this syndrome to the defendant's claim of self-defense should be allowed on the retrial of this case. Evidence of the victim's abuse of the defendant's children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the battered women's syndrome. Such evidence is highly probative of the issue of self-defense in the context of the battered women's syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.

        157
        IV
        158

         

        159

        In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general admissibility of expert testimony on the battered women's syndrome to be tried anew. The record reveals that the issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to permit, if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While it is arguable that the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at the trial was not adequate to establish the scientific reliability of the battered women's syndrome. The Court now unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the authenticity of the battered women's syndrome doctrine.

        160

        For the reasons expressed, I dissent in part from the Court's decision.

        161

        [229] For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and GARIBALDI — 6.

        162

        Concurring in part and dissenting in part — Justice HANDLER — 1.

        163

        [1] This version of the homicide — with a drunk Mr. Kelly as the aggresor both in pushing Ms. Kelly to the ground and again in rushing at her with his hands in a threatening position after the two had been separated — is sharply disputed by the State. The prosecution presented testimony intended to show that the initial scuffle was started by Gladys; that upon disentanglement, while she was restrained by bystanders, she stated that she intended to kill Ernest; that she then chased after him, and upon catching up with him stabbed him with a pair of scissors taken from her pocketbook.

        164

        [2] The works that comprise the basic study of the problem of battered women are all relatively recent. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); D. Martin, Battered Wives (1976); L. Walker, The Battered Woman (1979); R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy ed. 1977).

        165

        Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.

        166

        In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and seriousness of domestic violence:

        167

        The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all societal and economic backgrounds and ethnic groups; that there is a positive correlation between spouse abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-2].

        168

        [3] In her book, The Battered Woman, Dr. Lenore Walker cites research by sociologists Straus, Gelles, and Steinmetz finding that in 1976 at least one assault between family members occurred in 28% of all American homes. Id. at 70.

        169

        [4] In 1976, for example, battered women in California and New York instituted class actions alleging that the police customarily denied women legal protection by refusing to assist battered women or arrest their abusing husbands. The cases were settled by consent judgment. Scott v. Hart, No. C-76-2395 (N.D.Cal., filed Oct. 28, 1976); Bruno v. Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup.Ct. 1977), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).

        170

        [5] Alcohol is often an important component of violence toward women. Evidence points to a correlation between alcohol and violent acts between family members. In one British study, 44 of 100 cases of wife abuse occurred when the husband was drunk. Gayford, "Wife Battering: A Preliminary Survey of 100 Cases," British Medical Journal 1:194-197 (1975). Gelles, in The Violent Home: A Study of Physical Aggression between Husbands and Wives (1979), found that in 44 families where violence had occurred, drinking accompanied the violence in 21 of the cases. He also posited that alcohol and family violence are more closely related than alcohol and other types of violence.

        171

        [6] Prior to the enactment of the Code, former N.J.S.A. 2A:113-6 provided a statutory basis for self-defense claims specifically and justification defenses generally. However, as noted by the New Jersey Criminal Law Revision Commission, the law concerning justification was that found in the cases, since the literal wording of 2A:113-6 was not followed. Final Report of the New Jersey Criminal Law Revision Commission Vol. II: Commentary, at 78-79 (1971).

        172

        [7] See also Restatement of Torts 2d § 63 (1965) at 101. Under principles of self-defense as a justification for the torts of assault and battery — which closely parallel criminal self-defense principles — no privilege of self-defense exists for one acting in ignorance of another's intent to inflict harm on him. Cf. Perkins, "Self-Defense Re-examined," 1 U.C.L.A.L.Rev. 133, 134 (1954).

        173

        [8] The rejected form of § 2C:3-4 was patterned after § 3.04 of the Model Penal Code. The purpose of the proposed Code and M.P.C. provisions was to prevent one who killed in the honest but mistaken and unreasonable belief in the necessity of the action from being convicted of a crime like murder, which is premised on an act motivated by unlawful purpose. See Model Penal Code § 3.04 commentary at 14-15 (Tent. Draft No. 8 1958); Commission Report, supra, Vol. II: Commentary, at 83-84.

        174

        [9] In State v. Powell, 84 N.J. 305 (1980), we explicitly recognized that before enactment of the Code the doctrine of imperfect self-defense could reduce murder to manslaughter when the defendant honestly but unreasonably perceived himself in such danger as to require the use of deadly force. However, we expressed no opinion on whether imperfect self-defense was available under the new Code for the purpose of reducing murder to manslaughter. The resolution of that issue is immaterial to the case at bar.

        175

        [10] The factual contentions of the parties eliminated any issue concerning the duty to retreat. If the State's version is accepted, defendant is the aggressor; if defendant's version is accepted, the possibility of retreat is excluded by virtue of the nature of the attack that defendant claims took place. We do not understand that the State claims defendant breached that duty under any version of the facts. If, however, the duty becomes an issue on retrial, the trial court will have to determine the relevancy of the battered-woman's syndrome to that issue. Without passing on that question, it appears to us to be a different question from whether the syndrome is relevant to defendant's failure to leave her husband in the past.

        176

        [11] The State may not bar the introduction of expert testimony about the battered-woman's syndrome by stipulating that the defendant's fear of serious bodily harm was honestly held. In State v. Laws, 50 N.J. 159 (1967), we rejected the suggestion that the State should be compelled to stipulate to — and not introduce evidence on — those facts that the defendant did not dispute. We held that subject to the trial court's overriding control of the proceedings, the State "should have the right to make a full showing before the jury whenever it considers such course necessary for the proper presentation of its case." Id. at 184. Similar considerations compel the same result here, should the defendant seek to introduce testimony on a fact — the honesty of defendant's fear of serious bodily harm — that the State does not contest. This holding protects the defendant's due process rights by allowing her to offer testimony to establish a defense. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). Without the introduction of expert testimony to dispel common misconceptions about battered women, a jury might well question the stipulation of honesty.

        177

        [12] The State contends that even if the expert testimony is held admissible, its exclusion should be considered harmless error because of defendant's conviction for reckless manslaughter. The State's position is that under N.J.S.A. 2C:3-9(b) as it existed at the time of Gladys Kelly's conviction, self-defense was not available as a defense for any offense for which recklessness or negligence suffices to establish culpability, including, presumably, offenses where the defendant was reckless or negligent in believing the use of force to be necessary, or in acquiring or failing to acquire any knowledge that is material to the justifiability of the use of force. The argument, therefore, is that the expert testimony could not have saved defendant from the reckless manslaughter verdict.

        178

        N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the provision in the Code appears to have been an error, which has since been corrected by its repeal. See L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history of the repealer:

        179

        As originally drafted, justification defenses (i.e. self-defense) under the code were available to a defendant if his belief in the necessity of the use of force was honestly held. In conjunction with this provision, the code also provided in 2C:3-9b that if the defendant was reckless or negligent in forming that belief, he could be convicted of a crime for which recklessness or negligence was the required mental element. As enacted, however, the code requires not only that a defendant's belief be honestly held but also that his belief in the necessity to use force be reasonable. This requirement that a defendant's belief be both honest and reasonable vis a vis a justification defense obviates the necessity for the provision in 2C:3-9b that the reckless or negligent use of force can establish criminal liability. Therefore, the amendment in section 7 would delete this provision. [Senate Judiciary Committee, Statement to Committee Substitute for S. 2537 at 2 (1982)].

        180

        In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which was that self-defense based on a reasonable belief in the need for deadly force would constitute justification — a complete defense — to the charge of reckless manslaughter. If the jury here found defendant's belief was both honest and reasonable, it would be required to acquit her of all charges.

        181

        [13] At least two other courts agree that expert testimony about the battered-woman's syndrome is relevant to show the reasonableness as well as the honesty of defendant's fear of serious bodily harm. Ibn-Tamas v. United States, 407 A.2d 626, 634-35 (D.C. 1979) (expert testimony "would have enhanced Mrs. Ibn-Tamas' general credibility in responding to cross-examination designed to show that the testimony about the relationship with her husband was implausible," and also "would have supplied an interpretation of the facts which differed from the ordinary lay perception"); Hawthorne v. State, 408 So.2d 801, 806-07 (Fla. Dist. Ct. App. 1982) (expert testimony would "aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of [defendant's] belief," because "a jury would not understand why [defendant] would remain [with her husband]"); State v. Allery, 101 Wash.2d 591, 682 P.2d 312, 316 (Wash.Sup.Ct. 1984) (court approved use of expert testimony "[t]o effectively present the situation as perceived by the defendant, and the reasonableness of her fear ... to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships"). But see Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) (psychiatric testimony held to be of no help in determining whether a fear of serious bodily harm was reasonable).

        182

        Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v. Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v. Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear "reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), (battered wife stabs sleeping husband).

        183

        [14] Of course, expert testimony that meets these three criteria is still subject to other rules of evidence. For example, the probative value of the testimony must not be substantially outweighed by the risk that its admission would necessitate undue consumption of time or create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. Evid. R. 4. The danger of undue prejudice would be only slightly greater if expert testimony on the battered-woman's syndrome is introduced than without it, however, because the jury, even without it, will certainly hear about the past beatings from lay witnesses.

        184

        [15] The following courts agree that the battered-woman's syndrome is beyond the understanding of the average person: Ibn Tamas v. United States, supra, 407 A.2d 626; Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678; Hawthorne v. State, supra, 408 So.2d 801; State v. Anaya, supra, 438 A.2d 892. But see State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137.

        185

        [16] Compare State v. Anaya, supra, 438 A.2d 892, and Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678 (both cases accepting expert testimony without reservation), with Hawthorne v. State, supra, 408 So.2d 801, and Ibn-Tamas v. United States, supra, 407 A.2d 626 (both cases remanding to trial court for further consideration of scientific acceptability), and with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), and State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137 (both cases holding that subject was not sufficiently established as a matter of scientific expertise).

        186

        [17] Under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate the acceptance of a premise by the scientific community. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197, 1217 (1980).

        187

        [18] In addition to her general knowledge of the battered-woman's syndrome, Dr. Veronen is quite familiar with the facts in this case. Dr. Veronen interviewed Ms. Kelly for approximately five hours, during which time the two spoke about Ms. Kelly's background, Ms. Kelly's first meeting with Mr. Kelly, Ms. Kelly's relationship with her children and Mr. Kelly, the history of the physical abuse she suffered, and her stabbing of Mr. Kelly. Dr. Veronen also reviewed several psychological tests that were administered to Ms. Kelly, and from those concluded that Ms. Kelly was a battered woman. In addition, Dr. Veronen reviewed statements of eyewitnesses to the stabbing, police reports, and Ms. Kelly's hospital reports following the stabbing.

        188

        [19] It is not contended by anyone that the battered woman's syndrome has been so well established in the scientific community and is so well known by the public as to authorize the Court to take judicial notice of it. Therefore, unlike some expert evidence (radar, for example, State v. Dantonio, 18 N.J. 570 (1955)) where all that is required is to show that the accepted body of scientific knowledge is being correctly applied, here the very existence and reliability of such scientific knowledge has to be established. As a matter of fact, the literature suggests that while there is a growing body of research concerning the syndrome, it is still in a relatively uncertain stage, there remaining some doubt about its validity. It is, therefore, necessary for this Court to be sure that on remand the State has an adequate opportunity to present such proofs as might persuade the trial court that the syndrome has not yet achieved sufficient acceptance in the scientific community to warrant its admissibility. While our dissenting colleague is apparently convinced both from the record and his own research that as a matter of law the syndrome has achieved that level of acceptability to warrant its admission, that procedure, leading to that conclusion, seems to us manifestly unfair to the State. Even if we were inclined to agree with our dissenting colleague on this issue, that would be beside the point, for what is involved here is not the correctness of the conclusion concerning the general acceptability within the scientific community of the battered-woman's syndrome, but the fundamental fairness of the proceedings in the trial court that might lead to such a conclusion. It is absolutely clear that the only proceedings concerning the syndrome before the trial court was the voir dire testimony of Dr. Veronen, that the State was permitted cross-examination only as to her qualifications, and that the court repeatedly assured the assistant prosecutor that "ample time" would be given on all issues concerning the syndrome. Not only was "ample time" not given, but no time was allowed, for the trial court, apparently believing that the proposed use of this testimony had been made clear, decided that the testimony would be inadmissible as a matter of law even if the witness were ruled to be an expert and even if the body of knowledge were ruled to be beyond the ken of jurors and generally accepted within the scientific community. The court's ruling that the expert's testimony was inadmissible was prefaced by the following statement: "I fully appreciate you have not had another opportunity to examine the Witness, Mrs. Cooper," the remark of the court being addressed to the assistant prosecutor. Throughout the transcript there were repeated references by the court and Mrs. Cooper to the fact that her role, up to that point, had been confined to cross-examination only on the witness's qualifications.

        189

        [20] Evidence Rule 4 provides:

        190

        The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.

        191

        [21] The trial court has discretion to bar the admission of prior convictions if it finds that their probative value is outweighed by their prejudice to the defendant. State v. Sands, supra, 78 N.J. at 146. The burden of proving that the prior convictions should be excluded, however, falls on the defendant. Ibid. We do not find that the trial court abused its discretion in allowing the limited testimony cited earlier, even though the remoteness of Ms. Kelly's earlier conviction would also have supported a ruling that her conspiracy conviction could not be brought out.

        192

        [22] We note that given defendant's conviction for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1), these instructions would not constitute harmful error. Both reckless homicide and homicide committed in the heat of passion resulting from a reasonable provocation constitute manslaughter, and both are crimes of the second degree. N.J.S.A. 2C:11-4(b), (c). Defendant's conviction for reckless manslaughter instead of manslaughter by provocation, therefore, did not prejudice her in terms of sentencing. Neither did it produce a compromise verdict of the type referred to in State v. Christener, 71 N.J. 55 (1976) where the concern was with the prejudicial effect of overcharging the jury by giving instructions on first degree murder that were not sufficiently supported by the evidence. This is easily distinguishable from the problem here, which involves only a deficient instruction for an alternate theory of the offense for which the defendant actually was convicted.

        193

        [23] We note that under the Code even if it is certain that the actor's life will soon be threatened, the actor may not use deadly defensive force until that threat is imminent. If he or she does, the crime in most cases would presumably be murder or manslaughter (see N.J.S.A. 2C:3-4a & 4b(2); 2C:11-3; 2C:11-4b), the last exposing the actor to a sentence of ten years in prison with a five-year discretionary parole ineligibility term or, if a firearm is used, a three-year mandatory parole ineligibility term. N.J.S.A. 2C:43-6a, b & c. The requirement that the use of deadly force, in order to be justifiable, must be immediately necessary, has as its purpose the preservation of life by preventing the use of deadly force except when its need is beyond debate. The rule's presumed effect on an actor who reasonably fears that her life will soon be endangered by an imminent threat is to cause her to leave the danger zone, especially if, because of the circumstances, she knows she will be defenseless when that threat becomes imminent. The rule, in effect, tends to protect the life of both the potential aggressor and victim. If, however, the actor is unable to remove herself from the zone of danger (a psychological phenomenon common to battered women, according to the literature), the effect of the rule may be to prevent her from exercising the right of self-defense at the only time it would be effective. Instead she is required by the rule to wait until the threat against her life is imminent before she responds, at which time she may be completely defenseless.

        194

        There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases (by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our homicide laws. That is a matter the Legislature might wish to examine.

      • 1.1.4 State v. Norman

        1
        378 S.E.2d 8 (1989)
        2
        324 N.C. 253
        3
        STATE of North Carolina
        v.
        Judy Ann Laws NORMAN.
        4
        No. 161PA88.
        5

        Supreme Court of North Carolina.

        6
        April 5, 1989.
        7

         

        8

        [9] Lacy H. Thornburg, Atty. Gen., by Steven F. Bryant, and Jeffrey P. Gray, Asst. Atty. Gen., for appellant State.

        9

        Robert W. Wolf, Forest City, and Robert L. Harris, Rutherfordton, for defendant-appellee.

        10

        MITCHELL, Justice.

        11

        The defendant was tried at the 16 February 1987 Criminal Session of Superior Court for Rutherford County upon a proper indictment charging her with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed from the trial court's judgment sentencing her to six years imprisonment.

        12

        The Court of Appeals granted a new trial, citing as error the trial court's refusal to submit a possible verdict of acquittal by reason of perfect self-defense. Notwithstanding the uncontroverted evidence that the defendant shot her husband three times in the back of the head as he lay sleeping in his bed, the Court of Appeals held that the defendant's evidence that she exhibited what has come to be called "the battered wife syndrome" entitled her to have the jury consider whether the homicide was an act of perfect self-defense and, thus, not a legal wrong.

        13

        We conclude that the evidence introduced in this case would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning either perfect or imperfect self-defense. Therefore, the trial court properly declined to instruct the jury on the law relating to self-defense. Accordingly, we reverse the Court of Appeals.

        14

        At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff's Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant's husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim's body.

        15

        Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant's mother's house. The defendant took a pistol from her mother's purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband's head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband's chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because "she took all she was going to take from him so she shot him."

        16

        The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his [10] alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband's assaults.

        17

        The defendant's evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant "dog," "bitch" and "whore," and on a few occasions made her eat pet food out of the pets' bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant's husband threatened numerous times to kill her and to maim her in various ways.

        18

        The defendant said her husband's abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband "got along very well when he was sober," and that he was "a good guy" when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.

        19

        In the early morning hours on the day before his death, the defendant's husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant's mother got him out of jail at the defendant's request later that morning, he resumed his drinking and abuse of the defendant.

        20

        The defendant's evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff's deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.

        21

        The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant's husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff's deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant's stomach was pumped at the local hospital, and she was sent home with her mother.

        22

        While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she [11] said she should kill him "because of the things he had done to her."

        23

        The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: "J.T., straighten up. Quit drinking. I'm going to have you committed to help you." She said her husband then told her he would "see them coming" and would cut her throat before they got to him.

        24

        The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.

        25

        That evening, the defendant and her husband went into their bedroom to lie down, and he called her a "dog" and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant's husband agreed to let her baby-sit. After the defendant's husband fell asleep, the baby started crying and the defendant took it to her mother's house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.

        26

        The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: "Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn't take it no more. There ain't no way, even if it means going to prison. It's better than living in that. That's worse hell than anything."

        27

        The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: "Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it."

        28

        Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.

        29

        Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, "it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?" He replied: "I believe that ... Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable...." Dr. Tyson later added: "I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family."

        30

        Dr. Rollins, who was the defendant's attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that "[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it." Dr. Rollins was asked his opinion as to whether "on June 12th, 1985, it appeared reasonably [12] necessary that Judy Norman would take the life of J.T. Norman?" Dr. Rollins replied that in his opinion, "that course of action did appear necessary to Mrs. Norman."

        31

        Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband's abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.

        32

        The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987). Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).

        33

        In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Gappins, 320 N.C. at 71, 357 S.E. 2d at 659. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Id. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. Id. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.

        34

        Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982). Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter. State v. Mize, 316 N.C. at 52, 340 S.E.2d at 441.

        35

        The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. Id. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense. See State v. Gappins, 320 N.C. 64, 73, 357 S.E.2d 654, 660 (1987); State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986); State v. Spaulding, 298 N.C. 149, 157, 257 S.E.2d 391, 396 (1979); State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428 (1935); State v. Kidd, 60 N.C.App. 140, 142, 298 S.E.2d 406, 408 (1982) disc. rev. denied, 307 N.C. 700, 301 S.E.2d 393 (1983); State v. Dial, 38 N.C. App. 529, 531, 248 S.E.2d 366, 367 (1978); 40 C.J.S. Homicide § 123(b) (1944).

        36

        The jury found the defendant guilty only of voluntary manslaughter in the present case. As we have indicated, an instruction on imperfect self-defense would have entitled [13] the defendant to nothing more, since one who kills in the exercise of imperfect self-defense is guilty at least of voluntary manslaughter. Therefore, even if it is assumed arguendo that the defendant was entitled to an instruction on imperfect self-defense—a notion we have specifically rejected—the failure to give such an instruction was harmless in this case. Accordingly, although we recognize that the imminence requirement applies to both types of self-defense for almost identical reasons, we limit our consideration in the remainder of this opinion to the issue of whether the trial court erred in failing to instruct the jury to consider acquittal on the ground that the killing was justified and, thus, lawful as an act of perfect self-defense.

        37

        The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).

        38

        The term "imminent," as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." Black's Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase "about to suffer" interchangeably with "imminent" to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).

        39

        The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was "imminent" or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother's house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.

        40

        Faced with somewhat similar facts, we have previously held that a defendant who believed himself to be threatened by the decedent was not entitled to a jury instruction on either perfect or imperfect self-defense when it was the defendant who went to the decedent and initiated the final, fatal confrontation. State v. Mize, 316 N.C. 48, [14] 340 S.E.2d 439 (1986). In Mize, the decedent Joe McDonald was reported to be looking for the defendant George Mize to get revenge for Mize's alleged rape of McDonald's girl friend, which had exacerbated existing animosity between Mize and McDonald. After hiding from McDonald for most of the day, Mize finally went to McDonald's residence, woke him up and then shot and killed him. Mize claimed that he feared McDonald was going to kill him and that his killing of McDonald was in self-defense. Rejecting Mize's argument that his jury should have been instructed on self-defense, we stated:

        41
        Here, although the victim had pursued defendant during the day approximately eight hours before the killing, defendant Mize was in no imminent danger while McDonald was at home asleep. When Mize went to McDonald's trailer with his shotgun, it was a new confrontation. Therefore, even if Mize believed it was necessary to kill McDonald to avoid his own imminent death, that belief was unreasonable.
        42

         

        43

        316 N.C. at 53, 340 S.E.2d at 442 (citations omitted). The same reasoning applies in the present case.

        44

        Additionally, the lack of any belief by the defendant—reasonable or otherwise—that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband "appeared reasonably necessary" to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing "appeared reasonably necessary" to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.

        45

        Dr. Tyson additionally testified that the defendant "believed herself to be doomed... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable." Such evidence of the defendant's speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief—reasonable or otherwise—that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant's subjective belief of what might be "inevitable" at some indefinite point in the future does not equate to what she believes to be "imminent." Dr. Tyson's opinion that the defendant believed it was necessary to kill her husband for "the protection of herself and her family" was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.

        46

        The defendant testified that, "I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been." She also testified, when asked if she believed her husband's threats: "Yes.... [H]e would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it." Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear— reasonable or otherwise—of imminent death or great bodily harm at the time of the killing.

        47

        We are not persuaded by the reasoning of our Court of Appeals in this case that when there is evidence of battered wife syndrome, neither an actual attack nor threat of attack by the husband at the moment the wife uses deadly force is required to justify the wife's killing of him in perfect self-defense. The Court of Appeals concluded that to impose such requirements [15] would ignore the "learned helplessness," meekness and other realities of battered wife syndrome and would effectively preclude such women from exercising their right of self-defense. 89 N.C.App. 384, 392-393, 366 S.E.2d 586, 591-592 (1988). See Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L.Rev. 545 (1988); Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981). Other jurisdictions which have addressed this question under similar facts are divided in their views, and we can discern no clear majority position on facts closely similar to those of this case. Compare, e.g., Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369, appeal denied, 517 Pa. 630, 539 A.2d 810 (1987) (abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent), with State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (1986) (abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed).

        48

        The reasoning of our Court of Appeals in this case proposes to change the established law of self-defense by giving the term "imminent" a meaning substantially more indefinite and all-encompassing than its present meaning. This would result in a substantial relaxation of the requirement of real or apparent necessity to justify homicide. Such reasoning proposes justifying the taking of human life not upon the reasonable belief it is necessary to prevent death or great bodily harm—which the imminence requirement ensures—but upon purely subjective speculation that the decedent probably would present a threat to life at a future time and that the defendant would not be able to avoid the predicted threat.

        49

        The Court of Appeals suggests that such speculation would have been particularly reliable in the present case because the jury, based on the evidence of the decedent's intensified abuse during the thirty-six hours preceding his death, could have found that the decedent's passive state at the time of his death was "but a momentary hiatus in a continuous reign of terror by the decedent [and] the defendant merely took advantage of her first opportunity to protect herself." 89 N.C.App at 394, 366 S.E.2d at 592. Requiring jury instructions on perfect self-defense in such situations, however, would still tend to make opportune homicide lawful as a result of mere subjective predictions of indefinite future assaults and circumstances. Such predictions of future assaults to justify the defendant's use of deadly force in this case would be entirely speculative, because there was no evidence that her husband had ever inflicted any harm upon her that approached life-threatening injury, even during the "reign of terror." It is far from clear in the defendant's poignant evidence that any abuse by the decedent had ever involved the degree of physical threat required to justify the defendant in using deadly force, even when those threats were imminent. The use of deadly force in self-defense to prevent harm other than death or great bodily harm is excessive as a matter of law. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986).

        50

        As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the "imminent death or great bodily harm" requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed by our Court of Appeals would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives' testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. See generally Rosen, The Excuse of Self-Defense: Correcting A Historical [16] Accident on Behalf of Battered Women Who Kill, 36 Am.U.L.Rev. 11 (1986) (advocating changing the basis of self-defense acquittals to excuse rather than justification, so that excusing battered women's killing of their husbands under circumstances not fitting within the traditional requirements of self-defense would not be seen as justifying and therefore encouraging such self-help killing); Mitchell, Does Wife Abuse Justify Homicide?, 24 Wayne L.Rev. 1705 (1978) (advocating institutional rather than self-help solutions to wife abuse and citing case studies at the trial level where traditional defenses to homicide appeared stretched to accommodate poignant facts, resulting in justifications of some killings which appeared to be motivated by revenge rather than protection from death or great bodily harm). It has even been suggested that the relaxed requirements of self-defense found in what is often called the "battered woman's defense" could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat. Rosen, The Excuse of Self-Defense: Correcting A Historical Accident on Behalf of Battered Women Who Kill, 36 Am.U.L. Rev. 11, 44 (1986).

        51

        In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant's culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.

        52

        For the foregoing reasons, we conclude that the defendant's conviction for voluntary manslaughter and the trial court's judgment sentencing her to a six-year term of imprisonment were without error. Therefore, we must reverse the decision of the Court of Appeals which awarded the defendant a new trial.

        53

        REVERSED.

        54

        MARTIN, Justice, dissenting.

        55

        At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.

        56

        Likewise, the difficulty of rebutting defendant's evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. "Defendant may always rest ultimately on the weakness of the state's case and the state's failure to carry its burden of proof." State v. Patterson, 297 N.C. 247, 256, 254 S.E.2d 604, 610 (1979).

        57

        At the heart of the majority's reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would "expand our law of self-defense beyond the limits of immediacy and necessity." Defendant does not seek to expand or relax the requirements of self-defense and thereby "legalize the opportune killing of allegedly abusive husbands by their wives," as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the [17] jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.

        58

        In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. See State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). All defenses presented by the defendant's evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. Id. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.

        59

        A defendant is entitled to an instruction on self-defense when there is evidence, viewed in the light most favorable to the defendant, that these four elements existed at the time of the killing:

        60
        (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
        61
        (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
        62
        (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
        63
        (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
        64

         

        65

        State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987). See also State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985) (to be entitled to an instruction on self-defense defendant must produce evidence tending to show he was free from fault and it was necessary or reasonably appeared to be necessary to kill in order to protect himself from great bodily harm or death). See generally State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978) (cases setting out these elements as requisites of proof of self-defense). The first element requires that there be evidence that the defendant believed it was necessary to kill in order to protect herself from serious bodily harm or death; the second requires that the circumstances as defendant perceived them were sufficient to create such a belief in the mind of a person of ordinary firmness. Both elements were supported by evidence at defendant's trial.

        66

        Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit "and exceed[ed]" the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:

        67
        Mrs. Norman didn't leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.
        68

         

        69

        [18] When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:

        70
        Yes.... I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don't think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman's power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.
        71

         

        72

        This testimony describes defendant's perception of circumstances in which she was held hostage to her husband's abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.

        73

        In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant's husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant's isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant's experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband's wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.

        74

        In State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986), this Court noted that if the defendant was in "no imminent danger" at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of "imminent" must be informed by the defendant's perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of "ordinary firmness" with regard to whether the defendant's perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.

        75

        Evidence presented in the case sub judice revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse, and one that dramatically distinguishes Judy Norman's belief in the imminence of serious harm from that asserted by the defendant in Mize. Psychologists have observed and commentators have described a "constant state of fear" brought on by the cyclical nature of battering as well as the battered spouse's perception that her abuser is both "omnipotent and unstoppable." See Comment, The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 Conn.L.Rev. 121, 131 (1982). Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. "[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating.... Thus from the perspective of the battered wife, the danger is constantly `immediate.' " Eber, The Battered Wife's Dilemma: [19] To Kill or To Be Killed, 32 Hastings L.J. 895, 928-29 (1981). For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, "imminent" is a term the meaning of which must be grasped from the defendant's point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant's belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.[1]

        76

        Defendant's intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent's life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as "imminent," even while her husband slept. Over these three days, her husband's anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant's fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband's death.

        77

        Defendant testified that on 10 June, two days before her husband's death, he had again forced her to go to a reststop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis's boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant's husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant's mother.

        78

        Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant's husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant's husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant's husband seize defendant's cigarette and put it out on her neck, the scars from which defendant displayed to the jury.

        79

        A police officer testified that he arrived at defendant's home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant's husband was interfering with ambulance attendants, saying "Let the bitch die." When he refused to respond to the officer's warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.

        80

        Defendant's mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, "Now, you're going to pay for taking those pills," and "I'll kill you, your mother and your grandmother." His rage was such that defendant's mother feared he might kill the whole family, and knowing defendant's [20] sister had a gun in her purse, she took the gun and placed it in her own.

        81

        Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother's house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to "straighten up. Quit drinking.... I'm going to have you committed to help you." Her husband responded, "If you do, I'll see them coming and before they get here, I'll cut your throat."

        82

        Later, her husband made her drive him and his friend to Spartanburg to pick up the friend's paycheck. On the way, the friend testified, defendant's husband "started slapping on her" when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant's head. At one point defendant's husband lay down on the front seat with his head on the arm rest, "like he was going to go to sleep," and kicked defendant, who was still driving, in the side of the head.

        83

        Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant's husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.'s fury. Phyllis testified that her father had beaten her mother "all day long." She testified that this was the third day defendant's husband had forbidden her to eat any food. Phyllis said defendant's family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis's grandmother had sent over a bag of groceries that day, defendant's husband had made defendant put them back in the bag and would not let anyone eat them.

        84

        Early in the evening of 12 June, defendant's husband told defendant, "Let's go to bed." Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, "Dogs don't lay in the bed. They lay in the floor." Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant "snuck up and took him out there to [her] mother's [house]." She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was "busting." Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, "and the gun was in there, and I don't know, I just seen the gun, and I took it out, and I went back there and shot him."

        85

        From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband's threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant's belief in the necessity to kill her husband not merely reasonable but compelling.

        86

        The third element for entitlement to an instruction on self-defense requires that there be evidence that the defendant was not the aggressor in bringing on the affray. If the defendant was the aggressor and killed with murderous intent, that is, the intent to kill or inflict serious bodily harm, then she is not entitled to an instruction on self-defense. State v. Mize, 316 N.C. 48, 340 S.E.2d 439. A hiatus between provocation by the decedent and the killing can mark the initiation of a new confrontation between the defendant and the decedent, such that the defendant's earlier perception of imminent danger no longer appears reasonable and the defendant becomes the aggressor. For example, in Mize, the defendant, who had been told the day before that the decedent was "out to get" him, went to the decedent's trailer with a shotgun, knocked on the front door, and hid under the steps when the decedent opened the door and asked who was there. Defendant then went to the back door, [21] knocked again, and shot the decedent. When the defendant went with his shotgun to the decedent's trailer, this Court said, it was a new confrontation, and if the defendant still believed that it was necessary to kill the decedent to avoid his own imminent death, that belief was unreasonable.

        87

        Where the defendant is a battered wife, there is no analogue to the victim-turned-aggressor, who, as in Mize, turns the tables on the decedent in a fresh confrontation. Where the defendant is a battered wife, the affray out of which the killing arises can be a continuing assault. There was evidence before the jury that it had not been defendant but her husband who had initiated "the affray," which the jury could have regarded as lasting twenty years, three days, or any number of hours preceding his death. And there was evidence from which the jury could infer that in defendant's mind the affray reached beyond the moment at which her husband fell asleep. Like the ongoing threats of death or great bodily harm, which she might reasonably have perceived as imminent, her husband continued to be the aggressor and she the victim.

        88

        Finally, the fourth element of self-defense poses the question of whether there was any evidence tending to show that the force used by defendant to repel her husband was not excessive, that is, more than reasonably appeared to be necessary under the circumstances. This question is answered in part by abundant testimony describing defendant's immobilization by fear caused by abuse by her husband. Three witnesses, including the decedent's best friend, all recounted incidents in which defendant passively accepted beating, kicks, commands, or humiliating affronts without striking back. From such evidence that she was paralyzed by her husband's presence, a jury could infer that it reasonably appeared to defendant to be necessary to kill her husband in order ultimately to protect herself from the death he had threatened and from severe bodily injury, a foretaste of which she had already experienced.

        89

        In State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922), in which the defendant was found guilty for the murder of his wife, Justice (later Chief Justice) Stacy recognized the pain and oppression under which a woman suffers at the hands of an abusive husband: "The supreme tragedy of life is the immolation of woman. With a heavy hand, nature exacts from her a high tax of blood and tears." Id. at 751, 115 S.E. at 61. By his barbaric conduct over the course of twenty years, J.T. Norman reduced the quality of the defendant's life to such an abysmal state that, given the opportunity to do so, the jury might well have found that she was justified in acting in self-defense for the preservation of her tragic life.

        90

        It is to be remembered that defendant does not have the burden of persuasion as to self-defense; the burden remains with the state to prove beyond a reasonable doubt that defendant intentionally killed decedent without excuse or justification. See State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 537 (1988) (the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill). If the evidence in support of self-defense is sufficient to create a reasonable doubt in the mind of a rational juror whether the state has proved an intentional killing without justification or excuse, self-defense must be submitted to the jury. This is such a case.

        91

        [1] This interpretation of the meaning of "imminent" is reflected in the Comments to the Model Penal Code: "The actor must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used." Model Penal Code § 3.04 comment (ALI 1985).

      • 1.1.5 Fisher v. State

        1

        IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

        2

        DONNIE L. FISHER, Respondent,

        3

         v. STATE OF MISSOURI, Appellant. 

        4

        WD73269

        5

        OPINION FILED: December 27, 2011

        6

        Appeal from the Circuit Court of Randolph County, Missouri The Honorable Michael L. Midyett, Judge

        7

        Before Division II: Mark D. Pfeiffer, Presiding Judge, and Victor C. Howard and Cynthia L. Martin, Judges

        8

        The State of Missouri (“the State”) appeals from the judgment of the Circuit Court of Randolph County, Missouri (“motion court”), granting Donnie L. Fisher's (“Fisher”) Rule 29.15 amended motion for post-conviction relief. The motion court found that Fisher's appellate counsel provided ineffective assistance by failing to raise as error, on direct appeal, the trial court's refusal to instruct the jury on self-defense and on lesser-included offenses for the charges of first-degree assault of a law enforcement officer. The motion court vacated Fisher's convictions on first-degree assault of a law enforcement officer and armed criminal action and placed the case on the trial setting docket. Because the motion court's ruling is clearly erroneous, we reverse.

        9

        Facts and Procedural Background[1]

        10

        Fisher and Roy Sanford (“Sanford”) escaped from a Georgia prison. They stole a truck and a sawed-off shotgun and were considered armed and dangerous. The men returned to Huntsville, Missouri, where they hid and barricaded themselves in an unoccupied mobile home, which was owned by an acquaintance.

        11

        Aside from the fact that they were escaped prison convicts who knew and expected law enforcement would pursue and attempt to apprehend them, Fisher had seen his and Sanford's mug shots on a local television newscast and knew that the police in the area of the television viewing area (which included Huntsville) were actively looking for them and were closing in on the prison escapees. Other than law enforcement related personnel—which Fisher and Sanford knew and expected were lawfully looking for them—there was no other evidence adduced at trial of any other person the two escaped convicts believed might be unlawfully attempting to find and harm them.

        12

        At trial, Fisher stipulated that he and Sanford possessed a sawed-off shotgun and that they had made statements that they would not return to prison alive. In fact, at all relevant times, Fisher carried in a pocket on his person a letter which stated, in pertinent part:

        13

        To whom it may concern: Upon my capture, or should I say death, because that's what it's got to be, I choose to die rather than live like an animal in the midst of n[***]ers. My only request is that I ask to be buried in Owensville, Missouri, right beside my son. I want the tombstone to say, “Too fast to live, too young to die,” with a pistol on the front. Don‟t forget the little vase for flowers. . . .

        14

         Fisher and Sanford remained in the mobile home for seven days before the owner informed law enforcement officers of the prison escapees' location. After warning the police that Fisher and Sanford were armed and had a police scanner, the owner provided law enforcement officers with a key to the mobile home and gave them permission to search the mobile home. Initially, the police officers (there were a total of five officers) attempted to use the key to gain access to the mobile home to capture the escapees without incident, but the front door entrance was barricaded and the back door could only be partially opened due to a chain locking mechanism.

        15

        Next, the law enforcement officers deployed non-lethal tear gas in an effort to flush the escapees out of the mobile home for apprehension. Because the officers were aware that Fisher and Sanford might have been in possession of a police scanner and that the escapees had indicated that they would not be taken into custody alive, the officers limited all radio traffic so as not to disclose their presence and tip off Fisher and Sanford that the police were coming to arrest them. At 5:30 a.m., Fisher and Sanford were asleep (but soon awakened) when the officers fired a total of sixteen canisters of tear gas through each of the windows of the mobile home (two canisters per window) with a 12-gauge shotgun. At trial, Fisher testified that Sanford stated “they” are using the tear gas to drive us out of the mobile home. Fisher testified that he responded to Sanford: “Man, I ain‟t going.”

        16

        Fisher and Sanford covered their faces with towels to avoid the effects of the tear gas and did not exit the mobile home. The officers waited approximately thirty minutes for the tear gas to take effect and force the escapees out, but to no avail. Shortly thereafter, several police officers approached the rear door of the mobile home to attempt to gain entry by prying it open with a “hooligan tool.” As the first police officer began to pry the rear door open, Fisher heard the noise at the rear door and fired the sawed-off shotgun in that direction twice, hitting the officer. The officer attempted to retreat, but was hit by a third shotgun blast—at which point the officer yelled, “Officer has been shot!” Two other police officers attempted to rescue their colleague and both officers were hit by Fisher's gunfire. The shootout between the police and the escapees then ensued; Fisher was ultimately shot in the shoulder and dropped the shotgun; the police scanner registered the communication of “Officers down”—which was heard by the escapees; Fisher suggested to Sanford that they surrender; Sanford picked up the sawed-off shotgun and fired two or three more shots; then, the escapees surrendered. Though none of the officers were killed, several were severely injured.

        17

        At trial, Fisher claimed he and Sanford had no way of knowing that police officers were the ones that had fired the tear gas into the barricaded mobile home he and Sanford were hiding in and that, because he was scared of being shot and killed, he fired the loaded sawed-off shotgun (that he had stolen) in what Fisher argues was lawful self-defense.

        18

        Fisher was charged by Felony Information with five counts of assault of a law enforcement officer in the first degree, § 565.081,[2] and five counts of armed criminal action, § 571.015.

        19

        During the jury instruction conference at trial, Fisher tendered self-defense instructions based on MAI-CR 3d 306.06 on the counts for first-degree assault of a law enforcement officer, which were refused by the trial court. Fisher also tendered instructions for second-degree assault of a law enforcement officer on the counts for first-degree assault of a law enforcement officer, which were also refused by the trial court.

        20

        The jury found Fisher guilty of all counts of the Information. The trial court sentenced Fisher to life imprisonment on each count of assault and five years imprisonment on each count of armed criminal action, all sentences to run consecutively.

        21

        Fisher appealed his convictions. His appellate counsel raised a single point on appeal: that the trial court abused its discretion in compelling him to remain shackled at counsel table when he testified. State v. Fisher, 45 S.W.3d 512, 514 (Mo. App. W.D. 2001). This court affirmed the judgment of convictions. Id. at 515.

        22

        Subsequently, Fisher filed a Rule 29.15 motion for post-conviction relief, which was later amended by counsel. In his motion, Fisher alleged that his appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in refusing to submit to the jury: (i) an instruction on self-defense for the assault counts, and (ii) an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the assault counts. An evidentiary hearing was conducted.[3] The motion court concluded that both of Fisher's points were meritorious and granted his motion, vacating his convictions and ordering the case placed on the trial setting docket.

        23

        The State appeals.

        24

        Standard of Review

        25

        Rule 29.15 is the exclusive procedure by which a person convicted of a felony after trial may seek relief for a claim of ineffective assistance of appellate counsel. Rule 29.15(a). As the movant, Fisher had the burden of proving his claims for relief by a preponderance of the evidence. Rule 29.15(i). Appellate review of the motion court's disposition of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). “Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

        26

        “A defendant is entitled to effective assistance of appellate counsel.” Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)). The standard for proving ineffective assistance of appellate counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). In reviewing whether appellate counsel's performance was constitutionally deficient, the test of Strickland v. Washington, 466 U.S. 668 (1984), is applied. Anderson v. State, 196 S.W.3d 28, 36 (Mo. banc 2006). “To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). The movant must also show prejudice—that “[t]he claimed error [was] sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different.” Id. (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).

        27

        Analysis

        28

        Point I – Refusal to Submit Self-Defense Instruction

        29

        In its first Point on appeal, the State asserts that the motion court clearly erred in granting post-conviction relief based on Fisher's claim that his appellate counsel was ineffective for failing to raise as error, on direct appeal, the trial court's refusal to submit to the jury an instruction on self-defense for the counts relating to assault of a law enforcement officer in the first degree. Because the trial court did not err in refusing to submit a self-defense instruction and, consequently, Fisher's appellate counsel was not ineffective for failing to raise a non-meritorious claim in Fisher's direct appeal, Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007), the motion court has clearly erred in granting Fisher's Rule 29.15 motion on this basis.

        30

        “In the State of Missouri, self-defense is a person's right to defend himself or herself against attack.” State v. Edwards, 60 S.W.3d 602, 612 (Mo. App. W.D. 2001) (citing State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984)). That right is codified in section 563.031.[4] Section 563.031.2 limits the justifiable use of deadly force upon another person to situations where the actor reasonably believes that such force is necessary to protect himself or another against, among other things, death or serious physical injury initiated by unlawful force. The use of deadly force requires “[s]ome affirmative action, gesture or communication by the person feared indicating the immediacy of danger, the inability to avoid or avert it, and the necessity to use deadly force as a last resort.” State v. Isom, 660 S.W.2d 739, 742 (Mo. App. E.D. 1983). “Something more than fear is required to justify such extreme conduct.” Id.

        31

        A defendant has the burden of injecting the issue of self-defense into the case by substantial evidence. § 563.031.4. “„Substantial evidence‟ is evidence putting a matter in issue.”

        32

        State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003). To permit the use of deadly force in self-defense, four elements must be present:

        33

        (1) an absence of provocation or aggression on the part of the defender; (2) a reasonable belief that deadly force is necessary to protect himself or herself against an immediate danger of death, serious physical injury, rape, sodomy, or kidnapping or serious physical injury through robbery, burglary or arson; (3) a reasonable cause for that belief; and (4) an attempt by the defender to do all within his or her power consistent with his or her own personal safety to avoid the danger and the need to take a life.

        34

        Edwards, 60 S.W.3d at 612 (citing § 563.031 and Chambers, 671 S.W.2d at 783). Whether the defendant has produced the quantum of evidence necessary to support the submission of a self-defense instruction is a question of law for the trial court. State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985).

        35

        The third element, the reasonable cause for the belief that deadly force is necessary, is viewed from the circumstances as they appeared to the defendant. However, the reasonableness of the belief itself, the second element, is determined by an objective test. This objective standard measures conduct based on what a hypothetical ordinary reasonable and prudent person would have believed and how they would have reacted.

        36

        Edwards, 60 S.W.3d at 612 (emphasis added) (numerous internal citations omitted).

        37

        Herein lies the problem with Fisher's self-defense argument: ordinarily reasonable and prudent people do not escape from prison, steal a sawed-off shotgun, hole themselves up in a barricaded mobile home, carry around a note declaring a conscious decision to die rather than permit re-capture by law enforcement, and then “reasonably” question whether law enforcement might be lawfully attempting to re-capture them when non-lethal tear gas is initiated into their hiding place. Further, under the circumstances that Fisher and Sanford created by their conduct and statements to others, they invited the use of deadly force by law enforcement and cannot, as a matter of law, now escape the consequences of their conduct under the guise of self-defense. 

        38

        “The right of an arrestee to self-defense does not arise when the arrestee creates a situation so „fraught with peril‟ as to invite the use of force to subdue it.” State v. Nunes, 546 S.W.2d 759, 763 (Mo. App. 1977). “When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense.” Id. at 764 (citation omitted). “An officer is expected to be the aggressor, and is not to be placed on the same level as ordinary individuals having a private quarrel or denied that protection commensurate with the public duty exacted.” State v. Thomas, 625 S.W.2d 115, 122 (Mo. 1981) (internal citations and quotations omitted).

        39

        We conclude that the trial court properly determined as a matter of law that Fisher was not entitled to an instruction on self-defense, and consequently, we conclude that Fisher's appellate counsel could not be deemed to be ineffective for failing to raise a non-meritorious claim on appeal. Fisher stipulated that he was an escaped convict; he had seen his picture on television and knew the police were looking for him; he had stolen a truck and possessed a sawed-off shotgun; and he had asserted that he would not be taken back to prison alive. The officers shot non-lethal tear gas into the mobile home with a 12-gauge shotgun and waited thirty minutes before approaching the back door of the mobile home to pry the door open. Neither of these actions formed a basis for a reasonable belief that Fisher faced an immediate danger of deadly force or serious bodily injury. Furthermore, it would be unreasonable for Fisher to believe that anyone but law enforcement would shoot tear gas into an escapee's barricaded hideout prior to taking steps to apprehend the fugitives. There was no evidence that the officers used any force, deadly or otherwise, before Fisher opened fire. There was certainly no evidence that Fisher attempted “to do all within his power consistent with his personal safety to avoid the danger and the need to take a life.” Chambers, 671 S.W.2d at 783. At all times after his escape, Fisher could have avoided any danger by peacefully surrendering himself to law enforcement authorities. Instead, he stole a sawed-off shotgun and shot at the first person he suspected of entering his barricaded mobile home hideout.

        40

        Appellate counsel stated in her affidavit, introduced as evidence at the post-conviction evidentiary hearing, that she did not raise any point in Fisher's direct appeal concerning the trial court's refusal to instruct the jury on self-defense because she reviewed the trial record and court documents, discussed the case with her supervisor, and raised the only issue which she believed may have resulted in prejudice to Fisher. Fisher has not shown that his appellate counsel failed to raise a claim of error that a competent and effective lawyer would have recognized and asserted on appeal. Tisius, 183 S.W.3d at 215. Fisher has not shown that he was prejudiced by appellate counsel's failure to brief the issue or that had appellate counsel raised this claim on appeal “„the result of the proceeding would have been different.‟” Storey, 175 S.W.3d at 150 (quoting Williams v. Taylor, 529 U.S. 362, 390-91 (2000)).

        41

        Thus, the motion court clearly erred in granting Fisher's request for post-conviction relief on the basis that appellate counsel erred in failing to raise as error the trial court's refusal to submit to the jury an instruction on self-defense for the counts relating to assault of a law enforcement officer in the first degree.

        42

        Point I is granted.

        43

        Point II – Refusal to Submit Lesser-Included Offense Instruction

        44

        In its second Point on appeal, the State asserts that the motion court clearly erred in granting post-conviction relief based on Fisher's claim that his appellate counsel was ineffective for failing to raise as error, on direct appeal, the trial court's refusal to submit to the jury an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the counts relating to assault of a law enforcement officer in the first degree. The State claims that there was no meritorious basis for appellate counsel to assert such a claim because: (i) there was no basis for the jury to acquit Fisher of first-degree assault of a law enforcement officer because Fisher testified that he shot a shotgun at an approaching person multiple times from close range, and (ii) Fisher was not prejudiced by the lack of the instruction because there was overwhelming evidence that he attempted to kill or cause serious physical injury. We agree.

        45

        The test to be applied to determine whether an offense is a lesser-included offense is the test established in Blockburger v. United States, 284 U.S. 299 (1932), which is codified at section 556.046[5] and is known as the same elements test. Peiffer v. State, 88 S.W.3d 439, 443 (Mo. banc 2002).

        46

        A person commits the crime of assault of a law enforcement officer in the first degree if he “attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” § 565.081.1. “Serious physical injury” is “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” § 565.002(6). A person commits the crime of assault of a law enforcement officer in the second degree if he “[a]ttempts to cause or knowingly causes physical injury to a law enforcement officer by means of a deadly weapon or dangerous instrument.” § 565.082.1(1). “Physical injury” is “physical pain, illness, or any impairment of physical condition.” § 556.061(20).

        47

        Assault of a law enforcement officer in the second degree is a lesser-included offense of assault of a law enforcement officer in the first degree, Hill v. State, 181 S.W.3d 611, 621 (Mo. App. W.D. 2006); the distinguishing element between the two crimes is that first-degree assault requires that the defendant intended to cause death or serious physical injury to a law enforcement officer, while second-degree assault requires that the defendant intended to cause physical injury to a law enforcement officer. Id. at 620-21; compare MAI-CR 3d 319.32, assault of a law enforcement officer in the first degree, with MAI-CR 3d 319.34, assault of a law enforcement officer in the second degree.

        48

        The motion court determined that appellate counsel was ineffective for failing to raise as error the trial court's refusal to instruct the jury on lesser-included offenses—specifically of assault of a law enforcement officer in the second degree—stating that “[i]f there is any doubt regarding the evidence[,] an instruction should be given on the lower degree of the offense, leaving it to the jury to decide which of the offenses the defendant is guilty, if any,” and “[a]n accused is entitled to an instruction on any theory that the evidence tends to establish.” Although this general proposition is correct, “[a] trial court is not required to instruct on a lesser included offense unless the jury has a basis to (1) acquit of the offense charged, and (2) convict of the lesser offense.” Hill, 181 S.W.3d at 620; § 556.046.2. Furthermore:

        49

        In order for there to be a basis for an acquittal of the greater offense, there must be some evidence that an essential element of the greater offense is lacking and the element that is lacking must be the basis for acquittal of the greater offense and the conviction of the lesser.

        50

        Hill, 181 S.W.3d at 620 (quoting State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004)).

        51

        There was no error in the trial court's refusal to instruct on the lesser-included offense of assault of a law enforcement officer in the second degree because the facts testified to by Fisher would not have supported an acquittal of assault of a law enforcement officer in the first degree. The facts did not support an inference that Fisher only intended to cause physical injury; rather, the facts established that he intended to kill or cause serious physical injury. Hill, 181 S.W.3d at 621. During the gun-fight, Fisher and Sanford both fired a sawed-off shotgun at the law enforcement officers, shooting all five. Even though all the officers survived, at least two officers were seriously and permanently injured. Fisher, 45 S.W.3d at 514. This constituted ample evidence for the jury to find that Fisher intended to cause the officers “serious physical injury.”

        52

        In addition, “[t]he failure to give a different lesser-included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” State v. Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009). Fisher requested, and the trial court submitted, instructions for the lesser-included offense of assault in the first degree. Thus, the trial court's failure to give instructions for the different lesser-included offense of assault of a law enforcement officer in the second degree was not erroneous or prejudicial because the jury was instructed as to a lesser-included offense and found Fisher guilty of the greater offense. Id. at 576.

        53

        Appellate counsel stated in her affidavit, introduced as evidence at the post-conviction evidentiary hearing, that she did not raise any point in Fisher's direct appeal concerning the trial court's refusal to instruct the jury on the lesser-included offense of assault of a law enforcement officer in the second degree because she reviewed the trial record and court documents, discussed the case with her supervisor, and raised the only issue which she believed may have resulted in prejudice to Fisher. Fisher did not present the motion court with any evidence that would rebut the presumption that counsel exercised reasonable professional judgment in reaching this conclusion. Johnson v. State, 283 S.W.3d 279, 283 (Mo. App. S.D. 2009). Fisher's appellate counsel was not acting unreasonably by not raising the denied lesser-included offense instruction issue on appeal—and Fisher cannot show a reasonable probability that the outcome would have been different if she had—because the trial court's refusal to give the proffered instruction was correct. Id.

        54

        Thus, the motion court clearly erred in granting Fisher's request for post-conviction relief on the basis that appellate counsel erred in failing to raise as error the trial court's refusal to submit to the jury an instruction on the lesser-included offense of assault of a law enforcement officer in the second degree for the counts relating to assault of a law enforcement officer in the first degree.

        55

        Point II is granted.

        56

        Conclusion

        57

        Our full review of the record definitely and firmly reveals that the motion court clearly erred. Thus, the motion court's judgment is reversed and vacated. Fisher's convictions are ordered reinstated.

        58

        Victor C. Howard, Judge, and Cynthia L. Martin, Judge, concur.

        59

        [1] Generally, on appeal of a ruling on a Rule 29.15 motion for post-conviction relief, the facts must be viewed in the light most favorable to the verdict. Rousan v. State, 48 S.W.3d 576, 579 (Mo. banc 2001). However, because one of Fisher's points on appeal is the trial court's failure to instruct the jury on self-defense, we will view the evidence in a light most favorable to the defendant. State v. Crawford, 904 S.W.2d 402, 404 n.2 (Mo. App. E.D. 1995) (citing State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992)). Having said that, it should be noted that there was no testimony at the Rule 29.15 hearing, and most of the relevant facts were stipulated to by the parties.

        60

        [2] Because the events for which Fisher was convicted occurred on or about February 25, 1999, all statutory references are to RSMo 1994.

        61

        [3] No witnesses were called. Upon the request of Fisher's counsel, the motion court took judicial notice of the underlying criminal file and the transcript therefrom. Three exhibits were offered by Fisher's counsel and received into evidence: Exhibit 1: the brief filed in Fisher's direct appeal; Exhibit 2: our opinion in State v. Fisher, 45 S.W.3d 512 (Mo. App. W.D. 2001); and Exhibit 3: the affidavit of Fisher's direct appeal counsel. The motion court also heard arguments of counsel.

        62

        [4] Section 563.031 provides in pertinent part:

        63

        1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
        (1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided:
                (a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; . . .
        ....

        64

        2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, . . . .

        65

        (Emphasis added.) The application of the 2010 amendments to this statute to these facts is not before the court, and we express no opinion as to any impact they may have on our analysis.

        66

         

        67

        [5] Section 556.046 provides:

        68

        1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
             (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
             (2) It is specifically denominated by statute as a lesser degree of the offense charged; or
             (3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
        2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

      • 1.1.6 United States v. Urena

        1
        659 F.3d 903 (2011)
        2
        UNITED STATES of America, Plaintiff-Appellee,
        v.
        Lenny URENA, Defendant-Appellant.
        3
        No. 09-50285.
        4

        United States Court of Appeals, Ninth Circuit.

        5
        Argued and Submitted September 2, 2011.
        6
        Filed October 13, 2011.
        7

         

        8

        [905] Elizabeth Newman (argued), Federal Public Defender, Los Angeles, CA, for defendant-appellant Lenny Urena.

        9

        Harvinder S. Anand (argued), Michael J. Raphael, Assistant U.S. Attorneys, Los Angeles, CA, for plaintiff-appellee United States of America.

        10

        Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and MICHAEL PATRICK McCUSKEY, Chief District Judge.[*]

        11
        OPINION
        12

         

        13

        GOULD, Circuit Judge:

        14

        Lenny Urena appeals his jury conviction for assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and possession [906] of contraband in prison (a prison knife or "shank") in violation of 18 U.S.C. § 1791(a)(2), (b)(3). First, Urena argues that the district court abused its discretion by refusing to instruct the jury on his theory that he acted in self-defense. Second, Urena claims that the district court violated his Confrontation Clause rights by refusing to allow him to cross-examine the treating physician about the cause of the victim's injuries, and that the district court erred by refusing to let him designate the treating physician as his expert witness on causation during the trial. Finally, Urena further claims that his sentence is substantively unreasonable because his guidelines range sentence included "recency points," which were removed from the guidelines after he was sentenced. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

        15
        I
        16

         

        17

        On the morning of April 11th, 2006, federal prisoner Gary Dennis grabbed fellow inmate Lenny Urena and called him a "bitch." Urena returned the insult and the two separated. Hours later, Urena attacked Dennis by surprise, striking him in the face. Dennis tried to disengage but Urena pursued and struck him repeatedly from behind. Dennis eventually grabbed Urena and wrestled him to the ground. Another inmate, Nekis Atwater, intervened, kicking Dennis in the back of the head and punching him at least fourteen times.

        18

        Dennis's injuries were superficial, but he suffered lacerations that required stitches. The shank that caused these injuries was recovered from underneath Urena's shoulder. Eyewitnesses disagree about who had the shank in the fight, Atwater or Urena. Urena confessed that the shank was his and that he had held it during the fight.

        19

        At trial, Urena argued that Atwater attacked Dennis with the shank, and that he confessed to possessing it because he did not want to "snitch" on Atwater. He also argued self-defense, claiming he was in danger because Dennis had called him a bitch, which he contends is a serious threat in prison. Alternatively, he argued that Dennis could have had a weapon when Urena attacked him. The district court at first let Urena argue self-defense in his opening statement, but later refused to instruct the jury on self-defense, reasoning that Urena had not established a sufficient factual foundation.

        20

        At trial, the Government called Dr. Jaime David—Dennis's treating physician—to testify on the nature and extent of Dennis's injuries. Dr. David's report said that the injury above Dennis's right eye was likely caused by a punch or a fall to the ground, not a knife. The Government moved to preclude Urena from asking Dr. David questions about causation, and the court agreed to do so as long as the Government did not open the door to that line of questioning on direct. The district court explained that "[t]here is a difference between the nature of a wound and causation," and noted that questions about causation were outside the scope of Dr. David's role as a percipient witness. Urena's subsequent attempt during the trial to designate Dr. David as an expert was rejected by the court.

        21
        II
        22

         

        23

        Urena argues that the district court erred by refusing to give a self-defense instruction to the jury. We review for abuse of discretion the district court's conclusion that Urena did not establish a factual foundation to support a jury instruction on self-defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995). To be entitled to a self-defense [907] jury instruction, a defendant must make a prima-facie case of self defense by offering evidence to show:

        24

        (1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and

        (2) the use of no more force than was reasonably necessary in the circumstances.

        25

        United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir.2006).

        26

        Under this rule the privilege of claiming self defense as a justification for an assault is constrained by the need for an immediate threat of unlawful force, and the need for the action to be commensurate with the threat, with no more force used than reasonably necessary to meet it. Urena's primary argument to us is that he "had to attack ... so that no one would think he really was a bitch." Applying this rule, when a person receives harsh words from another, insulting words, demeaning words, or even fighting words, there is no privilege to assault the speaker with deadly force. Stated another way, a person insulted by a personal slur cannot stab the offending speaker in the neck, bash their skull with a baseball bat, send a bullet to their heart, or otherwise deploy deadly force in response to the insult.

        27

        Urena's being called a bitch in prison, though it might create risk in that harsh environment did not give Urena warrant to attack Dennis with a prison-made knife. Urena's being called a bitch in prison did not justify a surprise, pre-emptive attack using deadly force; indeed it would not have justified an assault using much less force. See, e.g., United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir.1998) (holding victim's threat to "finish what he started" later that afternoon was not imminent); United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (rejecting defendant's self-defense theory when victim was unarmed and in retreat); United States v. Slocum, 486 F.Supp.2d 1104, 1113-14 (C.D.Cal.2007) (rejecting self-defense theory when victims were unarmed and non-threatening at time of attack).

        28

        Urena also contends that he presented evidence that could show Dennis was carrying a shank and therefore he was defending himself against an imminent attack. But even if Dennis possessed a knife, the evidence was undisputed that it was Urena who was the attacker, and thus he could not in those circumstances successfully urge a self defense theory. The district court did not abuse its discretion in concluding that Urena's evidence was mere speculation and that a jury could not rationally sustain the defense based on the evidence presented. Wagner, 834 F.2d at 1486.

        29
        III
        30

         

        31

        Urena next contends that the district court erred by preventing him from examining Dr. David about the cause of Dennis's injuries and that this violated his Confrontation Clause rights. Federal Rule of Evidence 611(b) states a clear rule: "Cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness." We see no error of law, to the extent we review de novo on a Confrontation Clause claim, United States v. Larson, 495 F.3d 1094, 1101 (9th Cir.2007) (en banc), by the district court's limiting cross examination of Dr. David to the scope of his direct testimony.

        32

        We have held: "A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the [908] witness." United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir.1999) (internal citations and quotations omitted). The Government called Dr. David to testify only as to the nature and extent of Dennis's injuries. Urena's Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.

        33

        Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert. We review evidentiary rulings for abuse of discretion, though we review de novo the district court's interpretation of the Federal Rules of Evidence. United States v. Yida, 498 F.3d 945, 949 (9th Cir.2007). Urena argues that the testimony it wanted to elicit from Dr. David was not expert testimony because a doctor's evaluation of an injury is intertwined with his judgment of what caused the injury. He cites no legal authority for this argument, analogizing to the hearsay exception in Federal Rule of Evidence 803(4), which covers statements describing the cause of the injury "insofar as reasonably pertinent to diagnosis or treatment."

        34

        But other courts have held that a physician's assessment of the cause of an injury is expert testimony. See, e.g., United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.2005) ("Her diagnosis of the injury itself ... would be permissible lay testimony, but her statement about the cause of the injury was, as she admitted, a `hypothesis.' And the ability to answer hypothetical questions is the essential difference between expert and lay witnesses." (internal quotation and alteration omitted)); Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004) (holding that, where the cause of an injury would not be obvious to a lay juror, expert testimony is required). We are persuaded, and agree with our sister circuits, that Dr. David's opinion on issues of causation required expert testimony.

        35

        Urena's argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit. Urena could have designated and called his own medical expert, and did designate an expert on prisons. But instead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started. The district court held a pretrial conference and both the Government and Urena then were free to designate their planned experts. Urena did not at pretrial conference say that he wanted to call Dr. David as an expert or any other medical expert, and then he did not seek to designate Dr. David as his expert until after the trial was underway. There is no abuse of discretion in the district court excluding the proffer of a new expert not disclosed in pretrial conference or pretrial order. The district court has broad traditional powers to manage its docket and to manage the presentation of evidence through designated witnesses in a trial before it. See, e.g., United States v. Grace, 526 F.3d 499, 516 (9th Cir.2008) (en banc) ("[T]he district court here is well within its authority to manage its docket in enforcing a valid pretrial discovery order."). The district court also has unquestioned discretionary power to exclude evidence that should have been produced in reciprocal discovery. See United States v. Moore, 208 F.3d 577, 578 (7th Cir.2000) ("[C]ourts are entitled to exclude evidence that should have been produced during reciprocal discovery [909] in criminal cases.") (citing Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). It follows from these principles that a district court may normally refuse to permit expert testimony from an expert not previously designated before trial in the pretrial conference. We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.

        36
        IV
        37

         

        38

        Finally, Urena argues that his sentence should be vacated and remanded for re-sentencing because the Sentencing Commission has amended the guidelines to eliminate "recency points" from the sentencing calculation. U.S. Guidelines Manual, Supp. to App. C, Amend. 742 at 354-56 (2010) ("Amend.742"). The guidelines provide that when a change is not designated as retroactive, it is not to have retroactive effect to reduce a prison term. See U.S. Guidelines Manual § 1B1.10(a)(2). The change implemented by Amendment 742 is not designated as retroactive. § 1B1.10(c) (not listing Amend. 742).

        39

        Under the guidelines in place when Urena was sentenced, the sentencing range was correctly calculated as 77-96 months. If re-calculated under the revised guidelines, his sentencing range would be 63-77 months. Urena was sentenced to only 60 months. He argues that this sentence is substantively unreasonable in light of the Sentencing Commission's revision.

        40

        We review sentencing decisions for abuse of discretion. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.2009). "Only a procedurally erroneous or substantively unreasonable sentence will be set aside." Id. at 1053 (quoting United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc)). Urena argues that his sentence is substantively unreasonable in light of Amendment 742 because the reason for the amendment was that recency points only minimally predict recidivism. See Amend. 742. But we have recently held that failure to vary from a guidelines range sentence to compensate for the inclusion of recency points after Amendment 742 had been proposed but before it was adopted does not render a sentence substantively unreasonable. United States v. Ruiz-Apolonio, 657 F.3d 907, 917-19 (9th Cir.2011). Urena's sentence, adopted before Amendment 742 was even proposed, is not substantively unreasonable.

        41

        The district court is required to apply the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). Subsequent amendments to the guidelines can only be considered if the amendment is clarifying existing law (a nonsubstantive change) or listed as retroactive under U.S. Guidelines Manual § 1B1.10(c). United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir.2004). Amendment 742 is a substantive change because it was not characterized as a clarification and does not address a circuit conflict. Id. It was not listed as a retroactive change, and does not have retroactive effect.

        42

        Urena argues in the alternative that we should give the district court a chance to re-evaluate the sentence imposed in light of the amendment. He cites United States v. Godin, where the First Circuit vacated a defendant's sentence and remanded for re-sentencing after a non-retroactive amendment changed the way that past convictions are counted for criminal history purposes. 522 F.3d 133, 136 (1st Cir.2008) (per curiam). Recognizing that this amendment did not alter the guideline range, the First Circuit in Godin reasoned that it nonetheless might alter [910] the district court's ultimate choice of sentence, and left it to the district court's discretion whether the sentence should be changed in light of the amendment. Id.

        43

        We decline to adopt the approach taken by Godin. See also United States v. Alexander, 553 F.3d 591, 593 (7th Cir.2009) (criticizing the First Circuit's approach in Godin and declining to follow it). Amendment 742 is not listed as retroactive, and the guidelines themselves make clear that such a substantive change in the guidelines, where not listed as retroactive, does not warrant resentencing. U.S. Guidelines Manual § 1B1.10(a)(2). Here, there was an otherwise reasonable sentence arrived at in a procedurally correct way based on a properly calculated guidelines range.

        44

        AFFIRMED.

        45

        [*] The Honorable Michael Patrick McCuskey, Chief District Judge for the U.S. District Court for Central Illinois, Urbana, sitting by designation.

      • 1.1.7 State v. Abbott

        1
        36 N.J. 63 (1961)
        2
        174 A.2d 881
        3
        STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
        v.
        FRANK ABBOTT, DEFENDANT-APPELLANT.
        4

        The Supreme Court of New Jersey.

        5
        Argued September 13, 1961.
        6
        Decided November 6, 1961.
        7

         

        8

        [66] Mr. Charles Handler argued the cause for defendant-appellant (Mr. Joel F. Handler, on the brief).

        9

        Mr. Martin L. Greenberg, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).

        10

        The opinion of the court was delivered by WEINTRAUB, C.J.

        11

        Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J. Super. 191 (1960), and we granted certification, 34 N.J. 176 (1961).

        12

        Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.

        13

        Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he [67] meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.

        14

        Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.

        15

        Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.

        16
        I.
        17

         

        18

        The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found for him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.

        19

        As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity [68] from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.

        20
        A.
        21

         

        22

        We have the preliminary question whether defendant must demonstrate "plain error" to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or unsettled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.

        23
        B.
        24

         

        25

        The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.

        26

        We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force [69] than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.

        27

        The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316-318 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.

        28

        Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767-68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and [70] Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416 (Sup. Ct. 1916), affirmed o.b., 90 N.J.L. 341 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J. Super. 154 (App. Div. 1952); cf. State v. Goldberg, 12 N.J. Super. 293 (App. Div. 1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958).

        29

        We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.

        30

        In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct., at p. 502, 65 L.Ed., at p. 963):

        31

        "* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."

        32

         

        33

        The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted "seems to be a median position" and "would apparently remit the issue to the jury, without [71] a legal mandate on the point." We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, and if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular "formula laid down by the [trial] court" was not "adequate to the protection of the defendant's rights" (256 U.S., at pp. 342-343, 41 S.Ct., at p. 502, 65 L.Ed., at pp. 962-63) in the factual pattern which the defendant there asserted.

        34

        We believe the following principles are sound:

        35

        1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."

        36

        Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes (at p. 23), "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." Cf. Prosser, Torts § 19, at p. 90 (2d ed. 1955); Restatement, Torts § 63 (1934). Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas [72] came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.

        37

        2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As § 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating * * *." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor.

        38

        3. There has been some uncertainty in the language of our cases upon the burden of proof with respect to self-defense. The decisions are treated in State v. Chiarello, 69 N.J. Super. 479 (1961), where the Appellate Division correctly said that although the burden is upon a defendant to adduce evidence to support the defense, yet if such evidence appears either in the State's case or upon the defendant's case, the issue must be left to the jury with this instruction: that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of [73] retreat is raised in connection with the defense of self-defense, the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety, and that if a reasonable doubt upon that question should exist, the issue of retreat must be resolved in defendant's favor.

        39
        C.
        40

         

        41

        As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill (N.J.S. 2A:90-2). State v. Centalonza, supra (18 N.J. Super. 154). Here the charge is atrocious assault and battery (N.J.S. 2A:90-1), a crime which involves vicious or brutal conduct. State v. Riley, 28 N.J. 188, 197-198 (1958), appeal dismissed and cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959). An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. The Appellate Division held the doctrine applicable to atrocious assault and battery. The comment to Article 3 of the Model Penal Code (at p. 3) expresses the same view, saying, "If the particular force, for example, would be unjustifiable in a prosecution for homicide it should be equally unjustifiable if the victim survives and what is charged is an assault." This seems sound, and hence an instruction upon the subject is appropriate in a trial for atrocious assault and battery, but the instruction should be expressly centered about the use of deadly force.

        42
        D.
        43

         

        44

        We turn to the instruction of the trial court. It reads:

        45

        "* * * If you find the charges involved or either of them happened on the joint or common driveway and that the defendant [74] had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges or any of these charges if you find that he had a duty to retreat."

        46

         

        47

        It is at once apparent that the charge consists of abstract propositions, unanchored to the factual setting. It will be recalled the encounter had two phases, although one quickly followed the other. The first phase was an unarmed attack by Nicholas which Abbott met in kind; the second involved, as the jury could find, an attack or apparent attack by hatchet in the hands of Michael and by kitchen utensils allegedly wielded by Mary, both aided by Nicholas who had arisen from the initial punch. We have no way of knowing whether the jury understood Abbott was required to retreat when first assailed by Nicholas alone. The jury may well have so gathered since the instruction excluded self-defense "if you find that he [Abbott] did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm," and of course Nicholas's attack with his fists readily fitted within those terms.

        48

        The State asks us to assume the jury understood an unarticulated premise, i.e., that the court was referring solely to the hatchet affair. If we could so assume, still under the instruction the obligation to retreat would depend upon the nature of the attack upon Abbott rather than the amount of force Abbott intended to employ. In short, there was no reference to the use of a deadly force by Abbott. And if we should read the charge in still another way, to wit, that the court was merely defining its prior reference to "an available opportunity" to retreat and hence meant that the opportunity was not "available" if retreat would have subjected Abbott to imminent danger to his life or of great bodily harm but was "available" if he could get away with [75] a hurt of lesser character, still the charge would be incorrect. This is so because there is no obligation to retreat unless retreat can be effected "with complete safety," and indeed with knowledge that retreat can be so effected. Further, upon that interpretation, the instruction would be devoid of any statement of the facts prerequisite for consideration of the subject, i.e., an intent by the defendant to use a deadly force.

        49

        We have said enough to indicate the insufficiency of the charge. Even upon study and restudy we are not sure we can extract the thesis the trial court held. A jury which listens to a single reading of an instruction cannot be expected to debate its meaning and reach a correct view of it. A charge should be a clear, unambiguous guide related to the evidence in the case. The conviction must be reversed.

        50
        II.
        51

         

        52

        The record of Abbott's direct examination reads in part:

        53

        "Q. How much do you weigh, Mr. Abbott? A. At the present time?

        54

        Q. At the present time. A. Just close to 200 pounds, right now.

        55

        Q. Now, on July 15, 1957 [the date of the alleged crime] do you know how much you weighed? About July 15, not necessarily on that day, say within a few pounds either way. A. About 135, 140 pounds, I guess.

        56

        Q. Why was your weight so low at that time?

        57

        Mr. Loftus: I object on the ground it is irrelevant. I don't see any relevancy to this situation.

        58

        The Court: I will sustain the objection."

        59

        Defendant complains he was thereby barred from showing serious medical conditions, pertinent to his ability to defend with lesser force or to retreat with safety. The Appellate Division held defendant failed to comply with R.R. 1:5-1(a) in that he did not object to the ruling, and further held there was no manifest wrong or injury.

        60

        The cited rule reads in part:

        61

        "* * * Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by [76] the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." (Emphasis added)

        62

        Read literally, this rule would seem to require a specific objection to be stated after an offer of proof has been rejected, and some casual statements might be read to support that theme. State v. Gibson, 15 N.J. 384, 391 (1954); State v. Huff, 14 N.J. 240, 248 (1954); State v. Hogan, 20 N.J. Super. 1, 9 (App. Div. 1952). Thus understood, the rule could be thought to continue the discredited practice of former days under which error could not be asserted on appeal unless at the trial counsel had intoned "exception."

        63

        Our rules do not perpetuate mere ritual. Rather the purpose is to require a litigant to make known his position to the end that the trial court may consciously rule upon it. When that has happened, it would be pure ceremony to require some further protest. This view is embodied in R.R. 3:7-8, which reads as follows and in the light of which R.R. 1:5-1(a), quoted above, must be understood:

        64

        "Exceptions to rulings or orders of the court or instructions to the jury are not required in order to reserve the questions involved for review on appeal; and for all purposes for which an exception has heretofore been necessary it suffices that the defendant, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him."

        65

         

        66

        Actually in the Tentative Draft (1948) of our rules, the provisions of this rule appeared in Rule 1:2-14(a), the forerunner of R.R. 1:5-1(a).

        67

        Applied to the admission and exclusion of evidence, these rules have this effect: If a litigant complains of the admission of evidence, he must show he objected to its receipt and stated the reasons for his opposition. If he did, no more is required to preserve his right to appellate [77] review. If the litigant complains of an exclusion of evidence, it is enough that his adversary's objection was upheld unless he refused an opportunity to tell the court why he thought the evidence should be admitted. Here Abbott complains of the exclusion of proof. The State objected to the offer as "irrelevant." If the trial court wished Abbott to explain his thesis, an opportunity to do so should have been given. The trial court did not, but rather, apparently satisfied it fully appreciated what was involved, upheld the State. We see no reason to require Abbott to utter "I object" or to attempt to argue against a ruling already announced. He made known the ruling he wished, i.e., admission of the evidence he offered. He did not decline an opportunity to enlighten the court. We are satisfied the alleged error is presented without recourse to the doctrine of "plain error."

        68

        There is a different question with which the one just discussed should not be confused. That question is whether a litigant must spread on the record the essence of what he would have proved but for the adverse ruling. R.R. 4:44-3 provides "the examining attorney may make a specific offer of what he expects to prove by the answer of the witness." The rule in terms applies to civil matters but is merely declaratory of prior good practice and should be observed as well in criminal proceedings. Without such disclosure, an appellate court cannot readily evaluate whether the exclusion, although erroneous, resulted in manifest wrong or injury. State v. Micci, 46 N.J. Super. 454, 458 (App. Div. 1957); see State v. Gambutti, 36 N.J. Super. 219, 233 (App. Div. 1955); New Jersey Highway Authority v. Rudd, 36 N.J. Super. 1, 5 (App. Div. 1955).

        69

        Of course the details of the proffered proof ultimately depend upon the integrity of counsel, and that being so, a representation first made on appeal might be argued to be no less meaningful. But the proffer should be made at trial, for at least the reason that the statement may well induce the trial judge to reconsider and perhaps to reverse his ruling.

        70

        [78] Our experience indicates widespread failure to place such offers upon the trial record. Indeed, frequently we receive our first glimpse in response to questions at oral argument. In the present case the disclosure first appeared in the brief on appeal, wherein we are told defendant wanted to prove serious injuries and illness from which he was in the process of recovery at the time of the alleged offense. The admissibility of such proof on the issues of excessive force and of retreat is too evident to require discussion. The question disallowed was on its face suggestive of proof of that kind. Since the judgment must be reversed for other reasons already given, we need not speak further of the sufficiency of the record. But we take this opportunity to remind the bar that a failure to spread the offer on the trial record may lead the appellate court to conclude that it cannot find the error was harmful.

        71
        III.
        72

         

        73

        Abbott further urges the State could not move the indictment against him because prior thereto it had brought Michael Scarano to trial for assault with intent to kill him, which trial resulted in an acquittal. We think the Appellate Division correctly rejected this contention.

        74
        IV.
        75

         

        76

        Since the case must be remanded, we refer to a ruling of which Abbott does not here complain, lest it be repeated at a retrial. During direct examination Abbott was asked, "At any time did you intentionally strike anybody with this ax?" The State objected "on the ground it is leading," and was sustained. Curiously, a question essentially the same had already been asked and answered. After that question was answered, the State objected without specifying any ground. The trial court replied, "I think it is admissible and is answered anyway. I will permit it to stand."

        77

        The objection that the question was "leading" was unsound. In a sense every question is "leading." If [79] interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, "What is your position in this case?," is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440 (Sup. Ct. 1932).

        78

        Since the objection to the earlier question was not particularized, it is appropriate to add that questions addressed to the mental operations of a defendant are thoroughly proper when such operations are an ingredient of the State's case or of a defense. See State v. Myers, 7 N.J. 465, 483 (1951); State v. Len, supra (108 N.J.L. 439). Relevancy and materiality are obvious. And a defendant's competency to testify thereto is equally plain. Indeed no one knows better than he. Of course, he may not be believed, but his self-interest is not a bar, and has not been since the demise of the common-law rule which denied the stand to a party to a controversy. See 2 Wigmore, Evidence § 579, at p. 701 (3d ed. 1940).

        79

        The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.

        80

        For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

        81

        For affirmance — None.

      • 1.1.8 Jeannie Suk, At Home in the Law, Chapter 3 - Scenes of Self-Defense

        Available via the course's iSite.

    • 1.2 IV.B.ii. Necessity

      Necessity may also justify action that would otherwise be criminal. The category is significantly narrower than self-defense, and claims of necessity are rarely successful. Necessity requires imminent and grave harm that results through no fault of the defendant. The defendant must take forceful action only when the benefits clearly outweigh the harms.

      As you will see, the cases in this section often deal with significantly more extreme fact patterns than the self-defense cases. Why is the necessity justification narrowly construed?

      • 1.2.1 Regina v. Dudley and Stephens

        1


        THE QUEEN v. DUDLEY AND STEPHENS

        2

        December 9, 1884

        3

        A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.

        4

        At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation: --

        5

        Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder.

        6

        INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.

        7

        At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated

        8

        “that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”

        9

        The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.

        10

        Dec. 4.

        11

        Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the Crown. The record having been read, A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the statement in the verdict that the yacht was a registered British vessel, and that the boat in which the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they simply found the facts relating to the death of Parker, and nothing else was referred to them; thirdly, that the record could not be filed, for it had been brought Queen into the court by order only, and not by certiorari. Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be struck out of the record. With regard to the conclusion of the verdict it is according to the form of special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.

        12

        [THE COURT intimated that the points taken on behalf of the prisoners were untenable.]

        13

        With regard to the substantial question in the case -- whether the prisoners in killing Parker were guilty of murder -- the law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence against the acts of the person whose life is taken. This principle has been extended to include the case of a man killing another to prevent him from committing some great crime upon a third person. But the principle has no application to this case, for the prisoners were not protecting themselves against any act of Parker. If he had had food in his possession and they had taken it from him, they would have been guilty of theft; and if they killed him to obtain this food, they would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and Nations, which was referred to at the trial, has been found, upon examination in the British Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a judicial decision.[1]

        14

        [He was stopped.]

        15

        A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners were not guilty of murder, at the time when they killed Parker, but killed him under the pressure of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the case often put by casuists, of two drowning men on a plank large enough to support one only, and one thrusting the other off, the survivor could not be subjected to legal punishment. In the American case of The United States v. Holmes, the proposition that a passenger on board a vessel may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p. 221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked persons clinging to the same plank and one of them thrusting the other from it, finding that it will not support both, and says that this homicide is excusable through unavoidable necessity and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish. It is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft, but that is on the ground that there can be no such extreme necessity in this country. In the present case the prisoners were in circumstances where no assistance could be given. The essence of the crime of murder is intention, and here the intention of the prisoners was only to preserve their lives.

        16

        Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part of the crew of an English yacht, but for anything that appears on the special verdict the boat may have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v. Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by seamen employed or recently employed in a British ship. The special verdict cannot be amended in a capital case by stating the real facts.

        17

        Sir H. James, A.G., for the Crown.

        18

        [LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite us to take?]

        19

        To pronounce judgment and pass sentence. This was the practice even when, as formerly, the record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT intimated that judgment would be given on December 9th.

        20

        -- -- --

        21

        Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, BB) was delivered by

        22

        LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.

        23

        The special verdict as, after certain objections by Mr. Collins to which the Attorney General yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as above set out.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.

        24

        Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First it was contended that the conclusion of the special verdict as entered on the record, to the effect that the jury find their verdict in accordance, either way, with the judgment of the Court, was not put to them by my learned Brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office, that this has been the form of special verdicts in Crown cases for upwards of a century at least.

        25

        Next it was objected that the record should have been brought into this Court by certiorari, and that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record not of its own, but of another Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the Court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order; and we are all of opinion that the objection fails.

        26

        It was further objected that, according to the decision of the majority of the judges in the Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain, of a German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in the Franconia Case has been since not only enacted but declared by Parliament to have been always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.

        27

        There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by violence, violence justified so far as it was necessary for the object, any illegal violence used towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione, tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as justifying homicide is a necessity of the same nature.

        28

        It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)

        29

        But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)

        30

        But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?

        31

        It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael Foster “necessity and self-defence” (which he defines as "opposing force to force even to the death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it.

        32

        In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.

        33

        What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”

        34

        The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing that the necessity he was speaking of was a physical necessity, and the self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new authority, nor any fresh considerations. Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the island of St. Kitts, when that island was possessed partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us which must be decided on very different considerations.

        35

        The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, "necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.

        36

        There remains the authority of my Brother Stephen, who, both in his Digest and in his History of the Criminal Law, uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best authority for saying that it was not meant to cover it. If it had been necessary, we must with true deference have differed from him, but it is satisfactory know that we have, probably at least, arrived at no conclusion in which if he had been a member of the Court he would have been unable to agree. Neither are we in conflict with any opinion expressed upon the subject by the learned persons who formed the commission for preparing the Criminal Code. They say on this subject:

        37

        We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to, suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.

        38

        It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended but as it is we have, as they say, "to apply the principles of law to the circumstances of this particular case."

        39

        Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –

        40

        "So spake the Fiend, and with necessity

        The tyrant's plea, excused his devilish deeds."

        41

        It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.

        42

        It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.[2]

        43

        [The COURT then proceeded to pass sentence of death upon the prisoners.[3]]

        44

        Solicitors for the Crown: The Solicitors for the Treasury. 

        45

        Solicitors for the prisoners: Irvine & Hodges.

        46

        NOTES

        47

        [1] Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston Baker, a member of the Bar, and communicated to him as follows:

        48

        A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum, written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses. Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before seventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent home to St. Christopher.

        49

        [2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.

        50

        [3] This sentence was afterwards commuted by the Crown to six months imprisonment.

      • 1.2.2 Cleveland v. Anchorage

        1
        631 P.2d 1073 (1981)
        2
        Ann Hisky CLEVELAND, Kristine M. Fardig, Robert L. Head, and Pamela Sigfried, Appellants,
        v.
        MUNICIPALITY OF ANCHORAGE, Appellee.
        3
        No. 4956.
        4

        Supreme Court of Alaska.

        5
        July 24, 1981.
        6

         

        7

        [1075] Wayne Anthony Ross and Donald J. Miller, Miller & Ross, Anchorage, and Patrick Monoghan, Idaho, for appellants.

        8

        Elaine Vondrasek, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.

        9

        Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.[*]

        10
        OPINION
        11

         

        12

        RABINOWITZ, Chief Justice.

        13

        The facts underlying the four criminal convictions appealed from in this case are not in dispute.

        14

        On January 6, 1978, members of various anti-abortion groups staged a nationwide protest. In conjunction with that movement, members of Alaska Right to Life staged a demonstration outside of the building housing the Alaska Hospital and the Alaska Clinic in Anchorage. Having decided that they had "tried everything else" and that it was necessary "to try ... peacefully to stop the taking of human life," appellants Head, Fardig, Sigfried and Cleveland entered the Alaska Clinic to conduct a more emphatic protest than the one in progress outside the building. Head and Siegfried proceeded to attach themselves to the door of the Clinic's operating room with handcuffs and chains, while Cleveland and Fardig handcuffed themselves to the operating table.

        15

        Shortly after appellants had established themselves in the Clinic, Mingo, the building security supervisor, asked them to leave and then, in response to their refusal, obtained a set of boltcutters. Mingo first cut the handcuffs connecting Head and Sigfried to the door and escorted them from the building. He then returned and, overcoming relatively minor resistance, freed Fardig and Cleveland. Fardig was escorted outside and Cleveland, who refused to walk, was carried out on a sheet. All four were advised not to return unless they needed medical assistance.

        16

        Moments later, appellants re-entered the building and again approached the operating room; Mingo stopped them and again requested them to leave. Fardig, Cleveland and Siegfried then sat down on the floor, while Head removed himself to the building's main entrance and sat down there. At that point, city police were summoned. All four appellants were once again requested to leave the premises, and on refusing to do so, were arrested and then removed by police officers.

        17

        Appellants were each charged with violating Anchorage's criminal trespass ordinance[1] [1076] and all were convicted under that ordinance in the district court. The convictions were affirmed on appeal to the superior court, and are now before us on appeal from the superior court's affirmance.

        18

        Appellants' primary defense at trial was to have depended on the claim that their actions were necessary to avert imminent peril to human life. They allege error in the district court's refusal to instruct the jury on the defense of necessity. Although the trial court excluded that defense, it did allow appellants to defend on the ground that they acted under an honest and reasonable, but mistaken, belief that the necessity defense would protect them from criminal prosecution for their actions. They allege error on the ground that the instructions given on this latter defense were so "confusing and contradictory" as to require reversal. Appellants also seek reversal on the ground that the criminal complaints relied on by the state were defective and on the ground that the cumulative impact of the alleged errors deprived them of their due process rights under the United States Constitution and the Alaska Constitution.

        19
        I. DEFECTS IN THE COMPLAINTS.
        20

         

        21

        Appellants argue that the criminal complaints in this case were defective in two respects. First, Fardig, Cleveland and Sigfried claim that they were arrested in the Alaska Clinic rather than the Alaska Hospital as alleged in each of the complaints. Second, pointing to the literal language of the Anchorage trespass ordinance,[2] appellants contend that they were not in violation of that ordinance because the person who requested them to leave the building was not an "owner or occupant thereof."

        22

        Under Alaska Dist.Ct.R.Crim.P. 1(a),[3] a complaint constitutes the accusatory pleading by which an offense is charged in a district court proceeding; it serves the same function as does an indictment or information in the superior court. Under Alaska R.Crim.P. 7(c),[4] a mere formal defect does not render an indictment insufficient unless it is of a magnitude sufficient to prejudice substantial rights of the defendant. Alaska Dist.Ct.R.Crim.P. 1 directs application of the general Criminal Rule provisions to district court proceedings "[w]herever practicable." In the present case, three of the four complaints were [1077] formally defective in that they alleged that the trespasses occurred in the Alaska Hospital rather than in the Alaska Clinic where they actually did occur. Appellant Head admits that he was arrested for trespassing in the Alaska Hospital as alleged. Both facilities, however, were in fact contained within a single building. Since no prejudice to any appellant is claimed, and since we can perceive none that could be claimed, this asserted defect did not warrant dismissal of the subject complaints. See Price v. State, 437 P.2d 330, 332 (Alaska 1968).

        23

        Appellants' second attack on the sufficiency of the complaints is that Anchorage Municipal Code 8.30.010(B)(3)[5] requires that a trespasser be requested to depart from the premises by an "owner or occupant" before he can be found to have violated that ordinance. Mingo, the security supervisor for the whole Hospital-Clinic building, was, according to appellants, neither an owner nor an occupant of the building and therefore was not qualified to request them to leave.

        24

        Beyond his statements that he was "the building security supervisor" and that he was "employed by the Teamster[s] Union, Local 959," there is nothing in the record to indicate the precise nature of Mingo's employment arrangement with the Hospital or Clinic. Appellants' attack, however, is not based on the extent of Mingo's authority to act on behalf of the Clinic; it depends, rather, on a very literal reading of the trespass statute.[6] Appellants' claim assumes without argument that under the ordinance, an "owner or occupant" can never make the request that trespassers depart by acting through an agent. In the absence of argument or authority to the contrary, we see no reason for suspending the general common law of agency in construing section 8.30.010(B)(3) of the Anchorage Municipal Code. Other courts have reasoned similarly. See Johnson v. State, 277 Ala. 655, 173 So.2d 824, 827-28 (1965); People v. Thompson, 56 Ill. App.3d 557, 14 Ill.Dec. 312, 372 N.E.2d 117, 121-22 (1978). The record indicates that Mingo was a duly authorized agent of an "owner or occupant" of the Clinic acting within the scope of his employment, and his request that appellants leave the premises therefore satisfied the requirements of Anchorage Municipal Code 8.30.010(B)(3). Thus we also reject this facet of appellants' attack on the sufficiency of the complaints.

        25
        II. THE DEFENSE OF NECESSITY.
        26

         

        27

        Appellants' primary claim is that in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril. In spite of both argument and testimony offered at trial that is in apparent conflict with their present position, appellants now insist that:

        28
        It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the profile cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day.
        29

         

        30

        In support of their position appellants cite newspaper articles[7] describing two unreported Fairfax County, Virginia, district court cases[8] in which trespassers in an abortion clinic were acquitted on this theory.

        31

        [1078] The defense of necessity requires a showing of three essential elements:

        32
        1) The act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.[9]
        33

         

        34

        It is available if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. Nelson v. State, 597 P.2d 977, 979, 980 n. 6 (Alaska 1979).

        35

        Relying heavily on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the district court refused to allow the jury to consider the defense of necessity. Appellants argue that their presence "prevented the killing of children which was imminent" because "the potential victims and their mothers could not be brought to the abortion chambers through hallways and doors which the appellants were blocking."

        36

        There are several flaws in appellants' argument. First, the emergency which produces the "necessity" behind the charged act must generally be a result of the "physical forces of nature." W. LaFave & A. Scott, Criminal Law § 50, at 381. Generally, when the threatened harm emanates from a human source, an actor who violates the law in response to it can defend only on the grounds of duress, defense of others, or crime prevention. Id.[10] The defense [1079] of duress is clearly inappropriate here since appellants do not claim that their illegal acts were compelled by "the unlawful threats of another." E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974). The other two related defenses — defense of others and crime prevention — require that the harm avoided by the charged act be unlawful. R. Perkins, Criminal Law 1019 (2d ed. 1969).[11] Abortion, or the "killing of unborn children" as appellants characterize it, is not unlawful in this state, as appellants concede.[12] Given these principles, appellants' argument must fail since the alleged harm sought to be avoided did not arise from a natural source and was not unlawful.

        37

        Second, we find the reasoning of the Hawaii Supreme Court in State v. Marley, 509 P.2d 1095 (Hawaii 1973), persuasive. In Marley, the defendants were convicted of criminal trespass after entering the offices of Honeywell Corporation in an attempt to stop the "war crimes" being committed by Honeywell. As in the present case, the Marley defendants' behavior was nonviolent but was disruptive of normal business operations. Id. at 1099. Their necessity defense was rejected for three reasons, two of which we find applicable here: first, "[w]here there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of non-criminal protest were and are available to defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful." Marley, 509 P.2d at 1109 (citations omitted). Second, defendants are "unentitled to the defense of `necessity' because their actions were not reasonably designed to actually prevent the threatened greater harm... . Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt" the practices to which they objected. Id.

        38

        Appellants seek to distinguish Marley on the ground that the alleged harm in that case — the manufacture of weapons to be used in the Vietnam war — was specially and temporally remote from the site of the trespass whereas the abortions they prevented were scheduled in the very rooms appellants occupied and blocked, within minutes of the time of their entry. However, the lack of "imminence" in Marley was only one of the three grounds relied upon by the court, and the differences between this case and Marley do not render [1080] the other two grounds less applicable. In other respects, the facts of the two cases are closely analogous. In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.

        39

        Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view [as] harmful," id. at 1109, then, as appellants describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected.

        40

        Third, the defense of necessity requires a showing that the harm sought to be avoided was greater than the harm reasonably foreseeable as resulting from a defendant's illegal actions. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). That is, the harm reasonably foreseeably resulting from a failure to act must be balanced against that foreseeably resulting from the illegal action. We believe that harm to both the Clinic and its patients was reasonably foreseeable to the trespassers. The Clinic's schedule was disrupted and its operating room required resterilization; and it was certainly foreseeable that the patients scheduled to undergo abortions at the time the demonstration occurred would suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period.

        41

        Against this must be weighed the foreseeable results of appellants' failure to intervene — the routine performance of abortions, or, as appellants regard it, the killing of human life. Appellants acknowledge that the Supreme Court of the United States has expressly rejected the identification of fetuses as "persons" in this context. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 728-730, 156-59, 35 L.Ed.2d 147, 179-80, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). Appellants' view is that Roe v. Wade, although foreclosing the possibility of action by state officials to protect fetuses until viability, does not prohibit similar actions by individuals. The question, then, is a familiar one: whether appellants can, by appeal to a "higher law," justify their illegal attack on a form of government-approved behavior. Citing this court to two unreported cases[13] and the Nuremberg Trials,[14] appellants seek a ruling that, as a general principle, abortion is a more significant evil than trespass.

        42

         

        43

        However, even assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context,[15] the United States Supreme Court is not the only authority to which we must defer in [1081] this area. The Alaska legislature is better suited to strike the balance than is this court. Indeed, the law of necessity itself requires us to consult the legislature's enactments:

        44
        The defense of necessity is available only in situations wherein the legislature has to itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.
        45

         

        46

        LaFave and Scott, supra, § 50 at 382.[16]

        47

        Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade.[17] Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior.

        48

        We hold that the trial court's rejection of appellants' necessity defense was proper.[18] We are in agreement with the District of Columbia Court of Appeals' response to the [1082] necessity defense raised by participants in a similar anti-abortion demonstration:

        49
        Unlike medical necessity or other emergency situations, the necessity cited by appellants cannot shield them from criminal liability for their acts.
        50
        The rights to free speech, to assembly, and to petition the government for grievances are a cornerstone of the American system. So, too, is the right to be free from criminal interference. These appellants trespassed on the rights of others and did so without excuse.
        51

         

        52

        Gaetano v. United States, 406 A.2d 1291, 1295 (D.C.App. 1979).

        53
        III. JURY INSTRUCTIONS.
        54

         

        55

        Appellants assert that the following three instructions were so "confusing and contradictory" as to require reversal:

        56
        [NO. 7]
        57
        In the crime charged in the complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law.
        58
        [NO. 8]
        59
        In this case, if you find from the evidence that a defendant honestly believed that he or she had a right to remain on the premises occupied by Alaska Hospital and Clinic even after being instructed to leave, and that such belief was based upon reasonable grounds, and that the conduct of each defendant would have been lawful and proper had the facts been such as defendant honestly believed them to be, then you must find such defendant not guilty.
        60
        [NO. 9]
        61
        To constitute the defense of necessity, the defendants would have had to show that they were attempting to prevent some harm that was within their presence. Since the facts of this case have shown that the defendants were not attempting to prevent harm within their presence, the defense of necessity is not applicable. Therefore, you may not consider the defense of necessity in your deliberations.
        62

         

        63

        On appeal, the superior court agreed that the instructions were inconsistent, but held that the inconsistency did not require reversal. In its written opinion, the superior court stated:

        64
        The real problem is that instruction no. 8 states a proposition of law that is inapplicable to these cases. In essence, instruction no. 8 is an instruction on mistake of law as a defense. Mistake of law is not a defense applicable to the municipal trespass ordinance (AO 8.30.010) under which appellants were charged. Consequently, the judge gave an unwarranted instruction. The fact that instructions nos. 7 and 9 were inconsistent with no. 8 simply served to cure the error of giving no. 8. The error was harmless, as it is clear that the jury rejected the erroneous mistake of law instruction, so that `the jury was not substantially swayed or affected by the error.' Adkins v. Lester, 530 P.2d 11, reh. den., 532 P.2d 1027 (Alaska 1974).
        65

         

        66

        Instruction number eight was based upon the trial court's view that, although appellants could not defend on the basis of necessity, they could seek to excuse their conduct [1083] on the ground that they honestly and reasonably believed that that defense justified their presence at the Clinic. Three of the four appellants testified that they were aware of two judicial decisions in which, on facts virtually identical to those in the present case, defendants were acquitted on the ground of necessity.[19] All four testified that they believed they had a legal right to enter the Clinic in an attempt to prevent abortions from being performed. The instruction, then, would have required acquittal had the jury found these beliefs to be both honest and reasonable.

        67

        At trial, the state argued that the mistake of law defense, as presented by appellants, is only applicable if the mistaken reliance is upon the statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed. We have found no authority, and appellants cite none, for the proposition that an individual is justified in relying on the case law of other jurisdictions in deciding on a course of conduct.

        68

        Since the cases relied upon by appellants were both decided by a trial court in Fairfax County, Virginia, the defense of "reliance of a judicial decision" is inapplicable to the present case. The district court therefore committed error in giving instruction number eight.

        69

        We must agree with appellants' claim that the three instructions taken together were confusing. Instruction seven explains, correctly, that the criminal intent necessary to convict does not include intent to violate the law. Instruction eight, however, indicates that if the appellants honestly and reasonably believed their actions did not violate the law, they were not guilty. Instruction nine states the court's correct finding that the necessity defense was not available. Instructions eight and nine, taken together, express the court's erroneous view that an honest and reasonable belief in the availability of that defense could excuse the appellants' violations. Instruction seven, on the other hand, indicates that appellants need not have intended that their conduct be illegal to be convicted even if he thinks his conduct is legal and that he cannot be convicted. The instructions seem to say both that a defendant can be convicted if he reasonably and honestly believes his conduct to be legal.

        70

        As the superior court pointed out, instruction eight described a defense that was unavailable to appellants in this case. That instruction could have only operated in appellants' favor, however, and we agree with the superior court's conclusion that "it is clear that the jury rejected the erroneous ... instruction." We also agree with the superior court's further conclusion that "the jury was not substantially swayed or affected by the error"; as such, it did not affect appellants' substantial rights and was therefore harmless under Love v. State, 457 P.2d 622, 631 (Alaska 1969).

        71

        Having discerned only the single harmless error discussed above, we perceive no merit in appellants' final claim — that the cumulative effect of the errors alleged to have been committed by the trial court deprived them of the "level of procedural fairness" required by the due process clauses of the United States and Alaska Constitutions. The convictions of appellants are AFFIRMED.

        72

        DIMOND, Senior Justice, concurs.

        73

        COMPTON, J., not participating.

        74

        DIMOND, Senior Justice, concurring.

        75

        I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.

        76

        The defense of necessity is designed to justify otherwise illegal conduct taken to [1084] prevent a specific harm from occurring. See, e.g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App. 1979); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn.Mun. 1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F. Supp. 336, 338-40 (D.Md. 1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:

        77
        No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.
        78

         

        79

        283 F. Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir.1969):

        80
        From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.
        81
        Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.
        82

         

        83

        Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).

        84

        I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has [1085] attained viability. It stated its explanation for this conclusion as follows:

        85
        With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
        86

         

        87

        410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1973) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes `a definition for a syllogism,' and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).

        88

        In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.

        89

        The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:

        90
        [T]he fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is — either outside the womb or still inside the womb.
        91

         

        92

        C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.

        93
        [V]iability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.
        94

         

        95

        Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.

        96
        Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.
        97

         

        98

        Id. at 212.

        99

        I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with [1086] their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.[1]

        100

        [*] Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

        101

        [1] Anchorage Municipal Code 8.30.010 reads, in pertinent part, as follows:

        102

        Trespass — Posting of property — Penalty

        103

        A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property.

        104

        B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section.

        105

        The aforesaid enumerated acts shall include:... .

        106

        2. the pursuit of any course of conduct or action upon the land of another in violation of a notice posted or exhibited at the main entrance to the premises or at any point of approach or entry, or in violation of any notice, warning or protest given orally or in writing by any owner or occupant thereof;

        107

        3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; ... .

        108

        [2] Appellants rely on Anchorage Municipal Code 8.30.010(B)(3), under which "a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof" constitutes a trespass.

        109

        [3] Alaska Dist.Ct.R.Crim.P. 1(a) reads, in part:

        110

        "A criminal action is commenced by the filing of a complaint."

        111

        [4] Alaska R.Crim.P. 7(c) reads, in part:

        112

        No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.

        113

        [5] See note 2 supra.

        114

        [6] Appellants define "occupant" to mean "one having possession" of the premises.

        115

        [7] J. Beck, Success in Trespass Gives Right-to-Lifers a Legal Lift, The Washington Star, October 19, 1977, at B1; M. Weil, Va. Abortions Law Held Unconstitutional, The Washington Post, February 11, 1978, at B3.

        116

        [8] County of Fairfax v. Gaetano, No. 13974 (Gen.Dist.Ct. of Fairfax County, Va., October 17, 1977); County of Fairfax v. Smith, No. ___ (Gen.Dist.Ct. of Fairfax County, Va., February 11, 1978).

        117

        [9] Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). See E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); W. LaFave & A. Scott, Criminal Law § 50 at 385-88 (1972). See also AS 11.81.320, directing the courts to apply the common law to the defense of necessity in most situations.

        118

        [10] LaFave and Scott note that this requirement may be relaxed in some contexts:

        119

        With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity).

        120

        ... .

        121

        The typical duress case, however, has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order — e.g., see People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597 (1969), where defendant alleged he escaped from prison to avoid being killed by other inmates — the situation ought to be dealt with as a form of necessity rather than duress. In Richards, the court held the defense of duress was not available because `there was no offer to show that anyone demanded or requested that the defendant escape.'

        122

        W. LaFave & A. Scott, Criminal Law § 50 at 381-82 (1972) (footnote integrated into text). Some jurisdictions have agreed. See, e.g., People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (Cal. App. 1974) (under certain circumstances, necessity defense based upon threats of forcible sodomy may be raised in prosecution of prisoner on escape charges). The United States Supreme Court has defined very narrowly the situations in which a necessity defense to an escape charge may be available, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), holding that defendants must produce evidence of a bona fide attempt to surrender or return to custody as soon as the claimed necessity had lost its coercive force. We do not disagree with this expansion of the necessity defense to encompass human threats, but we are in agreement with those commentators who have noted that it should be limited to cases in which the threatened man-made harm is illegal:

        123

        The courts which have held the [necessity] defense inapplicable based their decisions primarily on the holding that first trimester abortions are legal. These opinions imply that whenever the harm emanates from a human source, this harm must be unlawful before the necessity defense can be used. This assumption, although not explicit in the cases or statutes, is solidly based in the common law as developed in both older and more recent cases. The early cases did not face the question as they dealt only with harms caused by natural forces, which can never be illegal. When faced with cases involving human-created harms, the courts modified the necessity doctrine and required that the threatened harm be illegal. This requirement continued in the prison escape cases. Although these decisions held necessity to be a proper plea when the threatened harm emanated from a human source, the facts of the cases involved human-created threats of unlawful acts, usually rape, homicide or felonious assault. Recent codifications and judicial opinions discuss the necessity defense in broad terms, neither expressly designating the source of the threatened harm nor its character. They are meant to codify the common law and can fairly be assumed to embody common-law principles. Several states' inclusions of self-defense and defense of another, which both justify otherwise unlawful conduct in the face of another person's unlawful act, support this thesis.

        124

        Note, Necessity as a Defense to a Change of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 513 (1979).

        125

        [11] Prof. Perkins explains that the "defense of others" doctrine was originally limited to others within the defendant's family or household, or some other group as to whom he had a legal or socially recognized duty of protection. The common-law privilege of using force for crime prevention was not limited in terms of those to whose aid the defendant could come, but was limited to crimes involving felonious attacks. Both have been expanded beyond these original limitations. "The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack." R. Perkins, Criminal Law 1019 (2d ed. 1969).

        126

        The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to "what he reasonably believes to be the use of unlawful force." AS 11.81.330(a); 11.81.340.

        127

        Thus, even assuming that a fetus should be regarded as an "other" in the context of a "defense of others" claim, the requirement that the threatened harm be illegal precludes such a claim here.

        128

        [12] Appellants do argue, however, that abortion is violative of international law. Similar arguments were raised and rejected in Marley. State v. Marley, 509 P.2d 1095, 1109-12 (Hawaii 1973).

        129

        [13] See note 8 supra.

        130

        [14] United States of America v. Greifelt, 4 Trials of War Criminals Before the Nuernberg Military Tribunal 608 (1949).

        131

        [15] However, we are not certain that the distinction is a plausible one. By carving out a necessity defense in abortion protest cases, i.e., judicially sanctioning private attempts to deprive pregnant women of rights the Supreme Court has declared them to have as against the state, this court itself might trigger the "state action" requirement of the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the legislature cannot delegate a "veto power" to the patient's parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a "veto power" to strangers, to be exercised in such an obtrusive manner.

        132

        We note that, in Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980), the court upheld a district court injunction and contempt order under 42 U.S.C. § 1985 against Mr. Gaetano and other demonstrators who, under the protection of the Fairfax County rulings noted above in n. 8, were systematically blocking access to the abortion clinic without being prosecuted. The complaint charged these demonstrators, with the complicity of the state court judges and prosecutors (who had temporarily suspended prosecutions in such trespass cases), with denying the abortion clinic and its patients the right to perform and obtain abortions in conformity with the Federal Constitution.

        133

        [16] The new criminal code contains a similar limitation at AS 11.81.320:

        134

        Justification: Necessity. Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when

        135

        (1) neither this title nor any other statute defining the offense provides exemption or defenses dealing with the justification of necessity in the specific situation involved; and

        136

        (2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.

        137

        [17] AS 18.16.010 reads:

        138

        Abortions. (a) No abortion may be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Welfare or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. `Abortion' in this section means an operation or procedure to terminate the pregnancy of a nonviable fetus. Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.

        139

        (b) A person who knowingly violates a provision of (a) of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both.

        140

        We express no opinion as to the constitutionality of these provisions. We only cite the statute to note that the legislature has resolved the "choice of evils" questions appellants would have us decide.

        141

        [18] A recent law review article cites several policy considerations that lead to the same conclusion:

        142

        When a court justifies an illegal act, it creates a new rule of law to govern the same dilemma in the future. In the clinic trespass context, this would mean that all sincere anti-abortion protesters who invaded clinics to prevent abortions would not be subject to criminal liability. There is even authority that clinic personnel or other persons could not use force to stop these justified actions. This could effectively close all abortion clinics so that women would have no means by which to effectuate their decision. This would occur even though clinic action causes no legal harm. There has never been an application of the necessity defense having such profound effects. The prison escape cases do not provide an adequate parallel since courts treat each case as unique, requiring a specific threat to the particular defendant. In the clinic cases a mere showing that abortions were being performed would be enough to acquit the anti-abortion intruder. Necessity was never meant to be applied in such an abusive manner.

        143

        The doctrine was developed to deal with unusual circumstances — ones never contemplated by the criminal or civil law. Abortions are not rare occurrences. They are sanctioned by the Constitution and by a substantial portion of society. This is not an area in which the law is silent. When a court applies necessity, its balancing of the harms reflects society's consensus. Necessity is meant to justify action that society would clearly want to exonerate. Trespasses that interfere with constitutional rights do not fall within this purpose.

        144

        Allowing necessity to justify these protests permits defendants to choose which laws they will obey based on their own moral code. This would justify acts of civil disobedience. The fact that these protests are the only means available at the moment to stop the abortion does not change the major purpose of the action which protesters and their lawyers admit is to change the law with regard to abortion. This simply cannot be accepted as a proper use of the necessity defense. [footnotes omitted]

        145

        Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 514-15 (1979).

        146

        [19] See note 8 supra.

        147

        [1] I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.

        148

        The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e.g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.

      • 1.2.3 People v. Unger

        1
        66 Ill.2d 333 (1977)
        2
        362 N.E.2d 219
        3
        THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
        v.
        FRANCIS UNGER, Appellee.
        4
        No. 48218.
        5

        Supreme Court of Illinois.

        6
        Opinion filed April 5, 1977.
        7

         

        8

        [334] [335] William J. Scott, Attorney General, of Springfield, and Martin Rudman, State's Attorney, of Joliet (James B. Zagel, Jayne A. Carr, and Steven J. Rosenberg, Assistant Attorneys General, of counsel), for the People.

        9

        Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.

        10

        Affirmed and remanded.

        11

        MR. JUSTICE RYAN delivered the opinion of the court:

        12

        Defendant, Francis Unger, was charged with the crime [336] of escape (Ill. Rev. Stat. 1971, ch. 108, par. 121), and was convicted following a jury trial before the circuit court of Will County. Defendant was sentenced to a term of three to nine years to be served consecutively to the remainder of the sentence for which he was imprisoned at the time of the escape. The conviction was reversed upon appeal and the cause was remanded for a new trial over the dissent of one justice. (33 Ill. App.3d 770.) We granted leave to appeal and now affirm the judgment of the appellate court.

        13

        At the time of the present offense, the defendant was confined at the Illinois State Penitentiary in Joliet, Illinois. Defendant was serving a one- to three-year term as a consequence of a conviction for auto theft in Ogle County. Defendant began serving this sentence in December of 1971. On February 23, 1972, the defendant was transferred to the prison's minimum security, honor farm. It is undisputed that on March 7, 1972, the defendant walked off the honor farm. Defendant was apprehended two days later in a motel room in St. Charles, Illinois.

        14

        At trial, defendant testified that prior to his transfer to the honor farm he had been threatened by a fellow inmate. This inmate allegedly brandished a six-inch knife in an attempt to force defendant to engage in homosexual activities. Defendant was 22 years old and weighed approximately 155 pounds. He testified that he did not report the incident to the proper authorities due to fear of retaliation. Defendant also testified that he is not a particularly good fighter.

        15

        Defendant stated that after his transfer to the honor farm he was assaulted and sexually molested by three inmates, and he named the assailants at trial. The attack allegedly occurred on March 2, 1972, and from that date until his escape defendant received additional threats from inmates he did not know. On March 7, 1972, the date of the escape, defendant testified that he received a call on an institution telephone. Defendant testified that the caller, [337] whose voice he did not recognize, threatened him with death because the caller had heard that defendant had reported the assault to prison authorities. Defendant said that he left the honor farm to save his life and that he planned to return once he found someone who could help him. None of these incidents were reported to the prison officials. As mentioned, defendant was apprehended two days later still dressed in his prison clothes.

        16

        The State introduced prior statements made by the defendant which cast some doubt on his true reasons for leaving the prison farm. In these statements, defendant indicated that he was motivated by a desire for publicity concerning the sentence on his original conviction, which he deemed to be unfair, as well as fear of physical abuse and death.

        17

        Defendant's first trial for escape resulted in a hung jury. The jury in the second trial returned its verdict after a five-hour deliberation. The following instruction (People's Instruction No. 9) was given by the trial court over defendant's objection.

        18
        "The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons."
        19

         

        20

        The appellate court majority found that the giving of People's Instruction No. 9 was reversible error. (33 Ill. App.3d 770, 777.) Two instructions which were tendered by defendant but refused by the trial court are also germane to this appeal. Defendant's instructions Nos. 1 and 3 were predicated upon the affirmative defenses of compulsion and necessity. (Ill. Rev. Stat. 1971, ch. 38, pars. 7-11 (compulsion), 7-13 (necessity).) Defendant's instructions Nos. 1 and 3 read as follows:

        21
        "It is a defense to the charge made against the Defendant that he left the Honor Farm of the Illinois State Penitentiary by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than [338] the injury which might reasonably result from his own conduct."
        22
        "It is a defense to the charge made against the Defendant that he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged."
        23

         

        24

        The principal issue in the present appeal is whether it was error for the court to instruct the jury that it must disregard the reasons given for defendant's escape and to conversely refuse to instruct the jury on the statutory defenses of compulsion and necessity. In the appellate court the defendant successfully asserted that the giving of People's Instruction No. 9 was tantamount to directing a verdict against the defendant. The State contends that, under the facts and circumstances of this case, the defenses of compulsion and necessity are, as a matter of law, unavailable to defendant.

        25

        Both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 370; People v. Kalpak (1957), 10 Ill.2d 411, 425; People v. Khamis (1951), 411 Ill. 46, 53.) Section 3-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3-2) provides that a defendant, to raise the issue of an affirmative defense, must present "some evidence" thereon. Therefore, if the defenses asserted were available to the defendant, he was entitled to an instruction on these theories if "some evidence" was introduced to support them. Conversely, it was error to give People's Instruction No. 9, which required the jury to disregard the reasons for the escape.

        26

        Proper resolution of this appeal requires some preliminary remarks concerning the law of compulsion and necessity as applied to prison escape situations. Traditionally, the courts have been reluctant to permit the defenses [339] of compulsion and necessity to be relied upon by escapees. (See 1975 U. Ill. L.F. 271, 274-75 & n. 23, and the cases cited therein.) This reluctance appears to have been primarily grounded upon considerations of public policy. Several recent decisions, however, have recognized the applicability of the compulsion and necessity defenses to prison escapes. In People v. Harmon (1974), 53 Mich. App. 482, 220 N.W.2d 212, the defense of duress was held to apply in a case where the defendant alleged that he escaped in order to avoid repeated homosexual attacks from fellow inmates. In People v. Lovercamp (1974), 43 Cal. App.3d 823, 118 Cal. Rptr. 110, a limited defense of necessity was held to be available to two defendants whose escapes were allegedly motivated by fear of homosexual attacks.

        27

        As illustrated by Harmon and Lovercamp, different courts have reached similar results in escape cases involving sexual abuse, though the question was analyzed under different defense theories. A certain degree of confusion has resulted from the recurring practice on the part of the courts to use the terms "compulsion" (duress) and "necessity" interchangeably, though the defenses are theoretically distinct. (Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 115 (1975); Note, Duress — Defense to Escape, 3 Am. J. Crim. L. 331, 332 (1975).) It has been suggested that the major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings, whereas in situations of necessity the pressure on the defendant arises from the forces of nature. (LaFave and Scott, Handbook on Criminal Law 381 (1972).) Also, as noted in the dissenting opinion in the appellate court, the defense of compulsion generally requires an impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually charged. [340] (33 Ill. App.3d 770, 777 (Stengel, J., dissenting); People v. Terry (1975), 30 Ill. App.3d 713; People v. Davis (1974), 16 Ill. App.3d 846.) Additionally, where the defense of compulsion is successfully asserted the coercing party is guilty of the crime. LaFave and Scott, Handbook on Criminal Law 380 (1972).

        28

        It is readily discernible that prison escapes induced by fear of homosexual assaults and accompanying physical reprisals do not conveniently fit within the traditional ambits of either the compulsion or the necessity defense. However, it has been suggested that such cases could best be analyzed in terms of necessity. (LaFave and Scott, Handbook on Criminal Law 381-82 n. 2 (1972).) One commentator has stated that the relevant consideration should be whether the defendant chose the lesser of two evils, in which case the defense of necessity would apply, or whether he was unable to exercise a free choice at all, in which event compulsion would be the appropriate defense. Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 133 (1975).

        29

        In our view, the defense of necessity, as defined by our statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13), is the appropriate defense in the present case. In a very real sense, the defendant here was not deprived of his free will by the threat of imminent physical harm which, according to the Committee Comments, appears to be the intended interpretation of the defense of compulsion as set out in section 7-11 of the Criminal Code. (Ill. Ann. Stat., ch. 38, par. 7-11, Committee Comments, at 423-33 (Smith-Hurd 1972).) Rather, if defendant's testimony is believed, he was forced to choose between two admitted evils by the situation which arose from actual and threatened homosexual assaults and fears of reprisal. Though the defense of compulsion would be applicable in the unlikely event that a prisoner was coerced by the threat of imminent physical harm to perform the specific act of escape, no such [341] situation is involved in the present appeal. We, therefore, turn to a consideration of whether the evidence presented by the defendant justified the giving of an instruction on the defense of necessity.

        30

        The defendant's testimony was clearly sufficient to raise the affirmative defense of necessity. That defense is defined by statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13):

        31
        "Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."
        32

         

        33

        Defendant testified that he was subjected to threats of forced homosexual activity and that, on one occasion, the threatened abuse was carried out. He also testified that he was physically incapable of defending himself and that he feared greater harm would result from a report to the authorities. Defendant further testified that just prior to his escape he was told that he was going to be killed, and that he therefore fled the honor farm in order to save his life. Though the State's evidence cast a doubt upon the defendant's motives for escape and upon the reasonableness of defendant's assertion that such conduct was necessary, the defendant was entitled to have the jury consider the defense on the basis of his testimony. It is clear that defendant introduced some evidence to support the defense of necessity. As previously mentioned, that is sufficient to justify the giving of an appropriate instruction.

        34

        The State, however, would have us apply a more stringent test to prison escape situations. The State refers to the Lovercamp decision, where only a limited necessity defense was recognized. In Lovercamp, it was held that the defense of necessity need be submitted to the jury only where five conditions had been met. (43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115.) Those conditions are:

        35
        [342] "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
        36
        (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
        37
        (3) There is no time or opportunity to resort to the courts;
        38
        (4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
        39
        (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 823, 831-32, 118 Cal. Rptr. 110, 115.
        40

         

        41

        The State correctly points out that the defendant never informed the authorities of his situation and failed to report immediately after securing a position of safety. Therefore, it is contended that, under the authority of Lovercamp, defendant is not entitled to a necessity instruction. We agree with the State and with the court in Lovercamp that the above conditions are relevant factors to be used in assessing claims of necessity. We cannot say, however, that the existence of each condition is, as a matter of law, necessary to establish a meritorious necessity defense.

        42

        The preconditions set forth in Lovercamp are, in our view, matters which go to the weight and credibility of the defendant's testimony. The rule is well settled that a court will not weigh the evidence where the question is whether an instruction is justified. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) The absence of one or more of the elements listed in Lovercamp would not necessarily mandate a finding that the defendant could not assert the defense of necessity.

        43

        By way of example, in the present case defendant did [343] not report to the authorities immediately after securing his safety. In fact, defendant never voluntarily turned himself in to the proper officials. However, defendant testified that he intended to return to the prison upon obtaining legal advice from an attorney and claimed that he was attempting to get money from friends to pay for such counsel. Regardless of our opinion as to the believability of defendant's tale, this testimony, if accepted by the jury, would have negated any negative inference which would arise from defendant's failure to report to proper authorities after the escape. The absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not, therefore, automatically preclude an instruction on the defense. We therefore reject the contention that the availability of the necessity defense be expressly conditioned upon the elements set forth in Lovercamp.

        44

        In conclusion, we hold that under the facts and circumstances of the present case the defendant was entitled to submit his defense of necessity to the jury. It was, therefore, reversible error to give People's Instruction No. 9 to the jury and to refuse to give an appropriate instruction defining the defense of necessity, such as the instruction tendered by the defendant. In light of our disposition of this appeal, we need not consider contentions raised by defendant as to the propriety of his sentence.

        45

        Therefore, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Will County for further proceedings in accordance with the views expressed herein.

        46

        Affirmed and remanded.

        47

        MR. JUSTICE UNDERWOOD, dissenting:

        48

        My disagreement with my colleagues stems from an uneasy feeling that their unconditional recognition of [344] necessity as a defense to the charge of escape carries with it the seeds of future troubles. Unless narrowly circumscribed, the availability of that defense could encourage potential escapees, disrupt prison discipline, and could even result in injury to prison guards, police or private citizens. (People v. Whipple (1929), 100 Cal. App. 261, 279 P. 1008.) For these reasons courts have been quite reluctant to honor the defenses of duress, necessity or compulsion in prison escapes, and, until recent years, they were uniformly held insufficient to justify escapes. As Mr. Justice Stengel noted in his dissenting opinion in the appellate court: "`Until [People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (1974)], no reviewing court had ever upheld a defense of necessity in ordinary adverse situations such as threats from fellow inmates.' 1975 U. Ill. L.F. 271, 275." 33 Ill. App.3d 770, 777.

        49

        Lovercamp, however, imposed well-defined conditions which must be met before a defendant is entitled to have the defense of necessity submitted to the jury:

        50
        "* * * (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
        51
        (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
        52
        (3) There is no time or opportunity to resort to the courts;
        53
        (4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
        54
        (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115.
        55

         

        56

        I am not totally insensitive to the sometimes brutal and unwholesome problems faced by prison inmates, and [345] the frequency of sexually motivated assaults. Prisoner complaints to unconcerned or understaffed prison administrations may produce little real help to a prisoner or may actually increase the hazard from fellow inmates of whose conduct complaint has been made. Consequently, and until adequate prison personnel and facilities are realities, I agree that a necessity defense should be recognized. The interests of society are better served, however, if the use of that defense in prison-escape cases is confined within well-defined boundaries such as those in Lovercamp. In that form it will be available, but with limitations precluding its wholesale use.

        57

        It is undisputed that defendant here did not meet those conditions. He did not complain to the authorities on this occasion even though, following an earlier threat and demand by a fellow inmate that defendant submit to homosexual activity, defendant had requested and been granted a transfer to the minimum security honor farm. Nor did he immediately report to the authorities when he had reached a place of safety. Rather, he stole a truck some nine hours after his escape, drove to Chicago, and later drove to St. Charles, using the telephone to call friends in Canada. This conduct, coupled with his admitted intent to leave in order to gain publicity for what he considered an unfair sentence, severely strain the credibility of his testimony regarding his intention to return to the prison.

        58

        Since defendant's conduct does not comply with conditions such as those in Lovercamp which, in my judgment, should be required before a necessity defense may be considered by a jury, I believe the trial court did not err in its instructions.

        59

        I would accordingly reverse the appellate court and affirm the judgment of the trial court.

      • 1.2.4 Model Penal Code sec. 3.02

      • 1.2.5 PCAT v. State of Israel

        1


         

        HCJ 5100/94

        HCJ 4054/95

        HCJ 6536/95

        HCJ 5188/96

        HCJ 7563/97

        HCJ 7628/97

        HCJ 1043/99

         

        HCJ 5100/94

        Public Committee Against Torture in Israel

        v.

        1. The State of Israel

        2. The General Security Service

         

        HCJ 4054/95

        The Association for Civil Rights in Israel

        v.

        1. The Prime Minister of Israel

        2. The Minister of Justice

        3. The Minister of Police

        4. The Minister of the Environment

        5. The Head of the General Security Service

         

         

         

         

        HCJ 6536/95

        Hat’m Abu Zayda

        v.

        The General Security Service

         

        HCJ 5188/96

        1. Wa’al Al Kaaqua

        2. Ibrahim Abd’allah Ganimat

        3. Center for the Defense of the Individual

        v.

        1. The General Security Service

        2. The Prison Commander—Jerusalem

         

        HCJ 7563/97

        1. Abd Al Rahman Ismail Ganimat

        2. Public Committee Against Torture in Israel

        v.

        1. The Minister of Defense

        2. The General Security Service

         

        HCJ 7628/97

        1. Fouad Awad Quran

        2. Public Committee against Torture in Israel

        v.

        1. The Minister of Defense

        2. The General Security Service

         

        HCJ 1043/99

        Issa Ali Batat

        v.

        The General Security Service

         

         

         

         

        The Supreme Court Sitting as the High Court of Justice

        [May 5, 1998, January 13 1999, May 26, 1999]

        Before President A. Barak, Deputy President S. Levin, Justices T. Or,  E. Mazza,  M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner

         

        Petition to the Supreme Court sitting as the High Court of Justice.

         

        Facts: In its investigations, the General Security Service makes use of methods that include subjecting suspects to moderate physical pressure. The means are employed under the authority of directives. These directives allow for the use of moderate physical pressure if such pressure is immediately necessary to save human life. Petitioners challenge the legality of these methods.

         

        Held: The Court held that the GSS did not have the authority employ certain methods challenged by the petitioners. The Court also held that the “necessity defense,” found in the Israeli Penal Law, could serve to ex ante allow GSS investigators to employ such interrogation practices. The Court's decision did not negate the possibility that the “necessity defense” would be available post factum to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought were brought against them.

         

        2

         

        3

        Petition denied.

         

        Counsel for the petitioner in HCJ 5100/94—Avigdor Feldman; Ronit Robinson

        Counsel for the petitioner in HCJ 4054/95—Dan Yakir

        Counsel for the petitioners in HCJ 6536/95 HCJ 5188/96 and HCJ 1043/99—Andre Rosenthal

        Counsel for petitioner Number Three in HCJ 5188/96—Eliyahu Abram

        Counsel for petitioners in HCJ 7563/97 and HCJ 7628/97—Leah Tzemel; Allegra Pachko

        Counsel for respondents—Shai Nitzan; Yehuda Scheffer

         

         

         

         

        JUDGMENT
         

        President A. Barak 

        The General Security Service [hereinafter the “GSS”] investigates individuals suspected of committing crimes against Israel’s security. Authorization for these interrogations is granted by directives that regulate interrogation methods. These directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the “Shabach” position. These methods are permitted since they are seen as immediately necessary to save human lives. Are these interrogation practices legal? These are the issues before us.

         

        Background

         

        1. Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel’s annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice.  In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—in areas of public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. (For an in depth description of this phenomenon see the Report of the Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities headed by Justice (ret.) M. Landau, 1987 [hereinafter the Report of the Commission of Inquiry]. See1 The Landau Book 269, 276 (1995).

        The facts before this Court reveal that 121 people died in terrorist attacks between January 1, 1996 and May 14, 1998. Seven hundred and seven people were injured. A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel’s cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders, and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities. The GSS is the main body responsible for fighting terrorism.

        In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorists in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means.

         

        The Petitions

         

        2. These petitions are concerned with the interrogation methods of the GSS. They outline several of these methods in detail. Two of the petitions are of a public nature. One of these (HCJ 5100/94) is brought by the Public Committee against Torture in Israel. It submits that GSS investigators are not authorized to investigate those suspected of hostile terrorist activities. Moreover, they claim that the GSS is not entitled to employ those methods approved by the Report of the Commission of Inquiry, such as “the application of non-violent psychological pressure” and of “a moderate degree of physical pressure.” The second petition (4054/95) is brought by the Association for Civil Rights in Israel. It argues that the GSS should be ordered to cease shaking suspects during interrogations.

        The five remaining petitions involve individual petitioners. They each petitioned the Court to hold that the methods used against them by the GSS are illegal.

        3. Petitioners in HCJ 5188/96 (Wa’al Al Kaaqua and Ibrahim Abd’alla Ganimat) were arrested at the beginning of June 1996. They were interrogated by GSS investigators. They appealed to this Court on July 21, 1996 through the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. They petitioned the Court for an order nisiprohibiting the use of physical force against them during their interrogation. The Court granted the order. The two petitioners were released from custody prior to the hearing. As per their request, we have elected to continue hearing their case, in light of the importance of the issues they raise.

        4. Petitioner in HCJ 6536/96 (Hat’m Abu Zayda), was arrested  on September 21, 1995 and  interrogated by GSS investigators. He turned to this Court on October 22, 1995 via the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. He complained of the interrogation methods allegedly used against him, including sleep deprivation, shaking, beatings, and use of the “Shabach” position. We immediately ordered the petition be heard. The Court was then informed that petitioner’s interrogation had ended. Petitioner was subsequently convicted of activities in the military branch of the Hamas terrorist organization. He was sentenced to 74 months in prison. The court held that petitioner both recruited for Hamas and also helped construct its terrorist infrastructure. The purpose of this infrastructure was to carry out the kidnapping of Israeli soldiers as well as execute other terrorist attacks against Israeli security forces. During oral arguments, it was asserted that the information provided by petitioner during his interrogation led to the thwarting of a plan to carry out serious terrorist attacks, including the kidnapping of soldiers.

        5. The petitioner in HCJ 7563/97 (Abd al Rahman Ismail Ganimat) was arrested on November 13, 1997 and interrogated by the GSS. He appealed to this Court on December 24, 1997 via the Public Committee against Torture inIsrael. He claimed to have been tortured by his investigators, through use of the “Shabach” position,” excessively tight handcuffs, and sleep deprivation. His interrogation revealed that he was involved in numerous terrorist activities, which resulted in the deaths of many Israeli citizens. He was instrumental in the kidnapping and murder of Sharon Edry, an IDF soldier. Additionally, he was involved in the bombing of Cafe “Appropo” in Tel Aviv, in which three women were murdered and thirty people were injured. He was charged with all these crimes and convicted at trial. He was sentenced to five consecutive life sentences plus an additional twenty years in prison.

        Subsequent to the dismantling and interrogation of the terrorist cell to which petitioner belonged, a powerful explosive device, identical to the one detonated at Cafe “Appropo” in Tel Aviv, was found in Tzurif, petitioner’s village. Uncovering this explosive device thwarted an attack like the one at Cafe “Appropo.” According to GSS investigators, the petitioner possessed additional crucial information which he revealed only as a result of the interrogation. Revealing this information immediately was essential to safeguarding national and regional security and preventing danger to human life.

        6. The petitioner in HCJ 7628/97 (Fouad Awad Quran) was arrested on December 10, 1997 and interrogated. He turned to this Court on December 25, 1997 via the Public Committee against Torture in Israel. Petitioners claimed that he was being deprived of sleep and was being seated in the “Shabach” position. The Court issued an order nisi and held oral arguments immediately. During the hearing, the state informed the Court that “at this stage of the interrogation, the GSS is not employing the alleged methods.” For this reason, no interim order was granted.

        7. The petitioner in HCJ1043/99 (Issa Ali Batat) was arrested February 2, 1999, and interrogated by GSS investigators. The petition, brought via the Public Committee against Torture in Israel, argues that physical force was used against petitioner during the course of the interrogation. The Court issued an order nisi. During oral arguments, it came to the Court’s attention that the petitioner’s interrogation had ended and that he was being detained pending trial. The indictment alleges his involvement in hostile activities, the purpose of which was to harm the security and public safety of the “area” (Judea, Samaria and the Gaza Strip).

        Physical Means

         

        8. The GSS did not describe the physical means employed by GSS investigators. The State Attorney was prepared to present this information in camera. Petitioners opposed this proposal. As such, the information before the Court was provided by the petitioners and was not examined in each individual petition. This having been said, the state did not deny the use of these interrogation methods, and even offered justifications for these methods. This provided the Court with a picture of the interrogation practices of the GSS.

        The decision to utilize physical means in a particular instance is based on internal regulations, which requires obtaining permission from the higher ranks of the GSS. The regulations themselves were approved by a special Ministerial Committee on GSS interrogations. Among other guidelines, the committee set forth directives regarding the rank required of an officer who was to authorize such interrogation practices.  These directives were not examined by this Court. Different interrogation methods are employed in each situation, depending what is necessary in that situation and the likelihood of obtaining authorization. The GSS does not resort to every interrogation method at its disposal in each case. 

        Shaking

         

        9. A number of petitioners (HCJ 5100/94; HCJ 4054/95; HCJ 6536/95) claimed that they were subject to shaking. Among the investigation methods outlined in the GSS interrogation regulations, shaking is considered the harshest. The method is defined as the forceful and repeated shaking of the suspect’s upper torso, in a manner which causes the neck and head to swing rapidly.  According to an expert opinion submitted in HCJ 5584/95 and HCJ 5100/95, the shaking method is likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches.

        The state entered several opposing expert opinions into evidence. It admits the use of this method by the GSS. It contends, however, that shaking does not present an inherent danger to the life of the suspect, that the risk to life as a result of shaking is rare, that there is no evidence that shaking causes fatal damage, and that medical literature has not, to date, reported a case in which a person died as a direct result of having been shaken. In any event, they argue, doctors are present at all interrogation areas, and the possibility of medical injury is always investigated.

        All agree that, in one particular case, (HCJ 4054/95) the suspect expired after being shaken. According to the state, that case was a rare exception.  Death was caused by an extremely rare complication which resulted in pulmonary edema. In addition, the state argues that the shaking method is only resorted to in very specific cases, and only as a last resort. The directives define the appropriate circumstances for its use, and the rank responsible for authorizing its use. The investigators were instructed that, in every case where they consider the use of shaking, they must examine the severity of the danger that the interrogation is intending to prevent, consider the urgency of uncovering the information presumably possessed by the suspect in question, and seek an alternative means of preventing the danger. Finally, the directives state that, in cases where this method is to be used, the investigator must first provide an evaluation of the suspect’s health and ensure that no harm comes to him. According to the respondent, shaking is indispensable to fighting and winning the war on terrorism. It is not possible to prohibit its use without seriously harming the ability of the GSS to effectively thwart deadly terrorist attacks. Its use in the past has lead to the prevention of murderous attacks.

        Waiting in the “Shabach” Position

         

        10. This interrogation method arose in several petitions (HCJ 6536/95, HCJ 5188/96, HCJ 7628/97). As per petitioners’ submission, a suspect investigated under the “Shabach” position has his hands tied behind his back. He is seated on a small and low chair, whose seat is tilted forward, towards the ground. One hand is tied behind the suspect, and placed inside the gap between the chair’s seat and back support. His second hand is tied behind the chair, against its back support. The suspect’s head is covered by a sack that falls down to his shoulders. Loud music is played in the room. According to the briefs submitted, suspects are detained in this position for a long period of time, awaiting interrogation.

        Petitioners claim that prolonged sitting in this position causes serious muscle pain in the arms, the neck and headaches. The state did not deny the use of this method. It submits that both crucial security considerations and the safety of the investigators require the tying of the suspect’s hands as he is being interrogated. The head covering is intended to prevent contact with other suspects. Loud music is played for the same reason.

        The "Frog Crouch"

         

        11. This interrogation method appeared in one of the petitions (HCJ 5188/96). According to the petition, the suspect was interrogated in a “frog crouch” position. This refers to consecutive, periodical crouches on the tips of one’s toes, each lasting for five minute intervals. The state did not deny the use of this method, and the Court issued an order nisiin the petition. Prior to hearing the petition, however, this interrogation practice ceased.

        Excessively Tight Handcuffs 

         

        12. In a number of petitions (HCJ 5188/96; HCJ 7563/97), several petitioners complained of excessively tight hand or leg cuffs. They contended that this practice results in serious injuries to the suspect’s hands, arms and feet, due to the length of the interrogations. The petitioners contend that particularly small cuffs were used. The state, for its part, denies the use of unusually small cuffs, arguing that those used were of standard issue and were properly applied. Even so, the state is prepared to admit that prolonged hand or foot cuffing is likely to cause injuries to the suspect’s hands and feet. The state contends, however, that injuries of this nature are inherent to any lengthy interrogation.       

        Sleep Deprivation

         

        13. In a number of petitions (HCJ 6536/96; HCJ 7563/97; HCJ 7628/97) petitioners complained of being deprived of sleep as a result of being tied in the “Shabach” position, while subject to the playing of loud music, or of being subjected to intense non-stop interrogations without sufficient rest breaks. They claim that the purpose of depriving them of sleep is to cause them to break from exhaustion.  While the state agrees that suspects are at times deprived of regular sleep hours, it argues that this does not constitute an interrogation method aimed at causing exhaustion, but rather results from the long amount of time necessary for conducting the interrogation. 

        Petitioners’ Arguments

         

        14. Before us are a number of petitions. Different petitioners raise different arguments. All the petitions raise two essential arguments. First, they submit that the GSS is never authorized to conduct interrogations. Second, they argue that the physical means employed by GSS investigators not only infringe the human dignity of the suspect undergoing interrogation, but also constitute criminal offences. These methods, argue the petitioners, are in violation of international law as they constitute “torture.” As such, GSS investigators are not authorized to conduct these interrogations. Furthermore, the “necessity defense” is not relevant to the circumstances in question. In any event, the doctrine of "necessity" at most constitutes an exceptional post factum defense, exclusively confined to criminal proceedings against investigators. It cannot, however, provide GSS investigators with the authorization to conduct interrogations. GSS investigators are not authorized to employ any physical means, absent unequivocal authorization from the legislature which conforms to the constitutional requirements of the Basic Law: Human Dignity and Liberty. There is no purpose in engaging in a bureaucratic set up of the regulations and authority, as suggested by the Report of the Commission of Inquiry, since doing so would merely regulate the torture of human beings.

        We asked petitioners whether the “ticking bomb” rationale was sufficiently persuasive to justify the use of physical means. This rationale would apply in a situation where a bomb is known to have been placed in a public area and will cause human tragedy if its location is not revealed. This question elicited different responses from the petitioners. There are those convinced that physical means are not to be used under any circumstances; the prohibition on such methods, to their mind, is absolute, whatever the consequences may be. On the other hand, there are others who argue that, even if it is acceptable to employ physical means in the exceptional circumstances of the “ticking bomb,” these methods are used even in absence of “ticking bomb” conditions. The very fact that the use of such means is illegal in most cases warrants banning their use altogether, even if doing so would include those rare cases in which physical coercion may have been justified. Whatever their individual views, all petitioners unanimously highlight the distinction between thepost factum possibility of escaping criminal liability and the advance granting of permission to use physical means for interrogation purposes. 

        The State’s Arguments

         

        15. According to the state, GSS investigators are authorized to interrogate those suspected of committing crimes against the security of Israel. This authority comes from the government’s general and residual powers, as per article 40 of the Basic Law: the Government. Similarly, the authority to investigate is bestowed upon every individual investigator under article 2(1) of the Criminal Procedure Statute [Testimony]. With respect to the physical means employed by the GSS, the state argues that these methods do not violate international law. Indeed, it is submitted that these methods cannot be described as “torture,” as “cruel and inhuman treatment,” or as “degrading treatment,” which are all strictly prohibited under international law.  The state further contends that the practices of the GSS do not cause pain and suffering.

        Moreover, the state argues that these means are legal under domestic Israeli law. This is due to the “necessity defense” of article 34(11) of the Penal Law-1977. In the specific cases where the “necessity defense” would apply, GSS investigators are entitled to use “moderate physical pressure” as a last resort in order to prevent real injury to human life and well-being.  Such “moderate physical pressure” may include shaking. Resort to such means is legal, and does not constitute a criminal offence. In any case, if a specific method is not deemed to be a criminal offence, there is no reason not to employ it, even for interrogation purposes. According to the state, there is no reason to prohibit a particular act if, in specific circumstances, it does not constitute a crime. This is particularly true with respect to GSS investigators who, according to the state, are responsible for the protection of lives and public safety.  In support of their position, the state notes that the use of physical means by GSS investigators is most unusual and is only employed as a last resort in very extreme cases. Moreover, even in such cases, these methods are subject to strict scrutiny and supervision, as per the conditions and restrictions in the Report of the Commission of Inquiry. This having been said, when such exceptional conditions are present, these interrogation methods are fundamental to saving human lives and safeguarding Israel’s security.

        The Report of the Commission of Inquiry

         

        16. The authority of the GSS to employ particular interrogation methods was examined by the Commission of Inquiry. The Commission, appointed by the government under the Commission of Inquiry Statute-1968, considered the legal status of the GSS. Following a prolonged deliberation, the Commission concluded that the GSS is authorized to investigate those suspected of hostile terrorist acts, even in absence of an express statute, in light of the powers granted to it by other legislation as well as by the government’s residual powers, outlined in the Basic Law: the Government.See The Basic Law: The Government, § 40.  In addition, the power to investigate suspects, granted to investigators by the Minister of Justice, as per article 2(1) of the Statute of Criminal Procedure [Testimony], also endows the GSS with the authority to investigate.  Another part of the Report of the Commission of Inquiry deals with “defenses available to the investigator.” With regard to this matter, the Commission concluded that, in cases where the saving of human lives requires obtaining certain information, the investigator is entitled to apply both psychological pressure and “a moderate degree of physical pressure.” As such, an investigator who, in the face of such danger, applies a degree of physical pressure, which does not constitute abuse or torture of the suspect, but is proportionate to the danger to human life can, in the face of criminal liability, avail himself of the “necessity defense.” The Commission was convinced that its conclusions were not in conflict with international law, but were rather consistent with both the rule of law and the need to effectively protect the security of Israel and its citizens.

        The commission approved the use of “moderate degree of physical pressure.” Such "moderate physical pressure" could be applied under stringent conditions. Directives to this effect were set out in the second, secret part of the report, and subject to the supervision of bodies both internal and external to the GSS. The commission’s recommendations were approved by the government.

        The Petitions

         

        17. A number of petitions dealing with the application of physical force by the GSS for interrogation purposes have made their way to this Court over the years. See, e.g., HCJ 7964/95 Billbissi v. The GSS (unreported decision); HCJ 8049/96 Hamdan v. The GSS (unreported decision); HCJ 3123/94 Atun v. The Head of the GSS (unreported decision); HCJ 3029/95 Arquan v. The GSS (unreported decision); HCJ 5578/95 Hajazi v. The GSS (unreported decision). Immediate oral arguments were ordered in each of these cases.  In most of the cases, the state declared that the GSS did not employ physical means. As a result, petitioners requested to withdraw their petitions. The Court accepted these motions and informed petitioners of their right to set forth a complaint if physical means were used against them SeeHCJ 3029/95. In only a minority of complaints did the state did not issue such a notice. In other instances, an interim order was issued. At times, we noted that we "did not receive any information regarding the interrogation methods which the respondent [generally the GSS] seeks to employ and we did not take any position with respect to these methods." See HCJ 8049/96 Hamdan v. The GSS (unreported decision). In HCJ 336/96; HCJ 7954/95 Billbissi v. The GSS (unreported decision), the Court noted that, “[T]he annulment of the interim order does not in any way constitute permission to employ methods that do not conform to the law and binding directives.”

        As such, the Court has not decided whether the GSS is permitted to employ physical means for interrogation under the defense of “necessity.” Until now, it was not possible for the Court to hear the sort of arguments that would provide a complete normative picture, in all its complexity. At this time, in contrast, a number of petitions have properly laid out complete arguments. For this we thank them.

        Some of the petitions are rather general or theoretical while others are quite specific. Even so, we have decided to deal with all of them, since we seek to clarify the state of the law in this most complicated question. To this end, we shall begin by addressing the first issue—are GSS investigators authorized to conduct interrogations? We shall then proceed to examine whether a general power to investigate could potentially sanction the use of physical means—including mental suffering—the likes of which the GSS employs. Finally, we shall examine circumstances where such methods are immediately necessary to rescue human lives and shall decide whether such circumstances justify granting GSS investigators the authority to employ physical interrogation methods. 

        The Authority to Interrogate

         

        18. The term “interrogation” takes on various meanings in different contexts. For the purposes of these petitions, we refer to the asking of questions which seek to elicit a truthful answer, subject to the privilege against self-incrimination.See the Criminal Procedure Statute (Testimony), § 2. Generally, the investigation of a suspect is conducted at the suspect’s place of detention.  Any interrogation inevitably infringes the suspect’s freedom—including his human dignity and privacy—even if physical means are not used. In a country adhering to the rule of law, therefore, interrogations are not permitted in absence of clear statutory authorization, whether such authorization is through primary or secondary legislation. This essential principle is expressed in the Criminal Procedure Statute (Powers of Enforcement, Detention)-1996, §1(a):

        Detentions and arrests shall be conducted only by law or by virtue of express statutory authorization.

         

        Hence, the statute and regulations must adhere to the requirements of the Basic Law: Human Dignity and Liberty. The same principle applies to interrogations. Thus, an administrative body, seeking to interrogate an individual—an interrogation being defined as an exercise seeking to elicit truthful answers, as opposed to the mere asking of questions as in the context of an ordinary conversation—must point to an explicit statutory provision. This is required by the rule of law, both formally and substantively. Moreover, this is required by the principle of administrative legality. “If an authority cannot point to a statute from which it derives its authority to engage in certain acts, that act is ultra vires and illegal.” See I. Zamir, The Administrative Authority (1996) at 50. See also 1 B. Bracha, Administrative Law 25 (1987).

        19. Is there a statute that authorizes GSS investigators to carry out interrogations?  There is no specific provision that deals with the investigatory authority of GSS agents. “The status of the Service, its function and powers, are not outlined in any statute addressing this matter.” See the Report of the Commission of Inquiry, at 302. This having been said, the GSS constitutes an integral part of the executive branch. The fact that the GSS forms part of the executive branch is not, in itself, sufficient to invest it with the authority to interrogate. It is true that, under the Basic Law: The Government, § 40, the government does possess residual or prerogative powers: 

        The Government is authorized to perform, in the name of the state, all actions which are not in the jurisdiction of another authority. In performing such actions, the Government is subject to all applicable laws.

         

        We cannot, however, interpret this provision as granting the authority to investigate. As noted, the power to investigate infringes a person’s individual liberty. The residual powers of the government authorize it to act whenever there is an “administrative vacuum.” See HCJ 2918/93 The City of Kiryat Gatt v. The State of Israel. There is no so-called “administrative vacuum” this case, as the field is entirely occupied by the principle of individual freedom. Infringing this principle requires specific directives, as President Shamgar insisted in HCJ 5128/94 Federman v. The Minister of Police

        There are means which do not fall within the scope of government powers.  Employing them, absent statutory authorization, runs contrary to our most basic normative understanding.  Thus, basic rights forms part of our positive law, whether they have been spelled out in a Basic Law or whether this has yet to be done. Thus, for example, the government is not endowed with the capacity to shut down a newspaper on the basis of an administrative decision, absent explicit statutory authorization, irrespective of whether a Basic Law expressly protects freedom of expression. An act of this sort would undoubtedly run contrary to our basic understanding regarding human liberty and the democratic nature of our regime, which provides that liberty may only be infringed upon by virtue of explicit statutory authorization.... Freedom of expression, a basic right, forms an integral part of our positive law. It binds the executive and does not allow it to stray from the prohibition respecting guaranteed human liberty, absent statutory authorization.

         

        In a similar vein, Professor Zamir has noted:

         

        In areas where the government may act under section 40 of the Basic Law: The Government, its actions must conform to the law. Clearly, this precludes the government from acting contrary to statutes. Moreover, it prevents the government from infringing basic rights.  This, of course, is true regarding the rights explicitly protected by the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This is also the case for human rights not specifically enumerated in those Basic Laws. For instance, section 40 cannot authorize the government to limit the freedom of expression…. Section 40 only grants general executive powers that cannot serve to directly infringe human rights, unless there is explicit or implicit statutory authorization for doing so. This same conclusion can also be drawn from the fact that a grant of administrative authority cannot be interpreted as granting the power to infringe human rights, unless such powers are explicitly granted by statute.

         

         See 1. I. Zamir, The Administrative Authority 337 (1996).

        The same is true in this case. There are to be no infringements on an individual's liberty against interrogation absent statutory provisions which successfully pass constitutional muster. The government’s general administrative powers do not fulfill these requirements. Indeed, when the legislature sought to endow the GSS with the power to infringe individual liberties, it anchored these powers in specific legislation. Thus, for instance, statutes provide that the head of a security service, under special circumstances, is authorized to allow the secret monitoring of telephone conversations.See the Secret Interception of Communication Statute-1979, § 5; Compare the Protection of Privacy Statute-1981, § 19(3)(4). Is there a special statutory instruction endowing GSS investigators with interrogating powers? 

        20. A specific statutory provision authorizing GSS investigators to conduct interrogations does not exist. While it is true that directives, some with ministerial approval, were promulgated in the wake of the Report of the Commission of Inquiry, these do not satisfy the requirement that a grant of authority flow directly from statute or from explicit statutory authorization. These directives merely constitute internal regulations. Addressing such directives, in HCJ 2581/91Salhat v. The State of Israel , Justice Levin opined:

        Clearly, these directives are not to be understood as being tantamount to a “statute,” as defined in article 8 of the Basic Law: Human Dignity. They are to be struck down if they are found not to conform to it

         

        From where, then, do the GSS investigators derive their interrogation powers? The answer is found in article 2(1) of the Criminal Procedure Statute [Testimony] which provides: 

        A police officer, of or above the rank of inspector, or any other officer or class of officers generally or specially authorized in writing by the Chief Secretary to the Government, to hold enquiries into the commission of offences, may examine orally any person supposed to be acquainted with the facts and circumstances of any offence in respect whereof such officer or police or other authorized officer as aforesaid is enquiring, and may reduce into writing any statement by a person so examined.

         

        It is by virtue of the above provision that the Minister of Justice authorized GSS investigators to conduct interrogations regarding the commission of hostile terrorist activities. It has been brought to the Court’s attention that, in the authorizing decree, the Minister of Justice took care to list the names of those GSS investigators who were authorized to conduct secret interrogations with respect to crimes committed under the Penal Law-1977, the Prevention of Terrorism Statute-1948, the (Emergency) Defense Regulations-1945, the Prevention of  Infiltration Statute (Crimes and Judging)-1954, and crimes which are to be investigated as per the Emergency Defense Regulations (Judea, Samaria and the Gaza Strip-Judging in Crimes and Judicial Assistance-1967). It appears to us—and we have heard no arguments to the contrary—that the question of the authority of the GSS to conduct interrogations can be resolved. By virtue of this authorization, GSS investigators are, in the eyes of the law, like police officers. We shall not now, however, express our opinion as to whether this arrangement, as opposed to the explicit statutory regulation of GSS officers, is an ideal arrangement.

        The Means Employed for Interrogation Purposes

         

        21. As we have seen, GSS investigators are endowed with the authority to conduct interrogations. What is the scope of these powers and do they include the use of physical means in the course of the interrogation? Can use be made of the physical means presently employed by GSS investigators—such as shaking, the “Shabach” position, and sleep deprivation—by virtue of the investigating powers given the GSS investigators? Let us note that the state did not argue before us that all the means employed by GSS investigators are permissible by virtue of the “law of interrogation.” Thus, for instance, the state did not make the argument that shaking is permitted simply because it is an “ordinary” method of investigation in Israel. Even so, it was argued that some of the physical means employed by the GSS investigators are permitted by the “law of interrogation” itself. For instance, this is the case with respect to some of the physical means applied in the context of waiting in the “Shabach” position—the placing of the head covering to prevent communication between the suspects, the playing of loud music to prevent the passing of information between suspects, the tying of the suspect’s hands to a chair for the investigators’ protection, and the deprivation of sleep, as necessary from the needs of the interrogation. Does the “law of interrogation” sanction the use of these physical means?

        22. An interrogation, by its very nature, places the suspect in a difficult position. “The criminal’s interrogation,” wrote Justice Vitkon over twenty years ago, “is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust.” Cr. A 216/74 Cohen v The State of Israel, at 352. An interrogation is a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and elicit the information that the investigator seeks to obtain. Quite accurately, it was noted that:

        Any interrogation, be it the fairest and most reasonable of all, inevitably places the suspect in embarrassing situations, burdens him, penetrates the deepest crevices of his soul, while creating serious emotional pressure.

         

        See Y. Kedmi, On Evidence 25 (1991)

        Indeed, the authority to conduct interrogations, like any administrative power, is designed for a specific purpose, and must be exercised in conformity with the basic principles of the democratic regime. In setting out the rules of interrogation, two values clash.  On the one hand, lies the desire to uncover the truth, in accord with the public interest in exposing crime and preventing it. On the other hand is the need to protect the dignity and liberty of the individual being interrogated. This having been said, these values are not absolute. A democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth. “The interrogation practices of the police in a given regime,” noted Justice Landau, “are indicative of a regime’s very character” Cr. A. 264/65 Artzi v. The Government’s Legal Advisor. At times, the price of truth is so high that a democratic society is not prepared to pay. SeeA. Barak, On Law, Judging and Truth, 27 Mishpatim 11, 13 (1997).  To the same extent, however, a democratic society, desirous of liberty, seeks to fight crime and, to that end, is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect—provided that it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined in Cr. A. 183/78 Abu Midjim v. The State of Israel, at 546:

        On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and that we do all that we can to restrain police investigators from prohibited and criminal means. On the other hand, it is also our duty to fight the growing crime rate which destroys the good in our country, and to prevent the disruption of public peace by violent criminals.

         

        Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a "reasonable interrogation." See Bein, The Police Investigation—Is There Room for Codification of the ‘Laws of the Hunt’, 12 Iyunei Mishpat 129 (1987). These rules are based, on the one hand, on preserving the “human image” of the suspect, see Cr. A. 115/82 Mouadi v. The State of Israel, at 222-24, and on preserving the “purity of arms” used during the interrogation. Cr. A. 183/78, supra. On the other hand, these rules take into consideration the need to fight crime in general, and terrorist attacks in particular. These rules reflect “a degree of reasonableness, straight thinking, and fairness.” See Kedmi, supra, at 25. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.

        23. It is not necessary for us to engage in an in-depth inquiry into the “law of interrogation” for the purposes of the petitions before us. These laws vary, depending on the context. For instance, the law of interrogation is different in the context of an investigator’s potential criminal liability, and in the context of admitting evidence obtained by questionable means. Here we deal with the “law of interrogation” as a power of an administrative authority. See Beinsupra. The “law of interrogation” by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting.

        First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading conduct whatsoever.  There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation. F.H. 3081/91 Kozli v. The State of Israel, at 446. Human dignity also includes the dignity of the suspect being interrogated. Compare HCJ 355/59 Catlan v. Prison Security Services, at 298 and C.A.4463/94 Golan v. Prison Security Services. This conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment.” See M. Evans & R. Morgan, Preventing Torture 61 (1998); N.S. Rodley, The Treatment of Prisoners under International Law 63 (1987). These prohibitions are “absolute.” There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can lead to the investigator being held criminally liable. See, e.g., the Penal Law: § 277. Cr. A. 64/86 Ashash v. The State ofIsrael (unreported decision).

        Second, a reasonable investigation is likely to cause discomfort. It may result in insufficient sleep. The conditions under which it is conducted risk being unpleasant. Of course, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various sophisticated techniques. Such techniques—accepted in the most progressive of societies—can be effective in achieving their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time-wise, may be deemed disproportionate. 

        From the General to the Particular 

         

        24. We shall now turn from the general to the particular. Clearly, shaking is a prohibited investigation method. It harms the suspect’s body. It violates his dignity. It is a violent method which can not form part of a legal investigation. It surpasses that which is necessary. Even the state did not argue that shaking is an “ordinary” investigatory method which every investigator, whether in the GSS or the police, is permitted to employ. The argument before us was that the justification for shaking is found in the “necessity defense.” That argument shall be dealt with below. In any event, there is no doubt that shaking is not to be resorted to in cases outside the bounds of “necessity” or as part of an “ordinary” investigation.

        25. It was argued before the Court that one of the employed investigation methods consists of compelling the suspect to crouch on the tips of his toes for periods of five minutes. The state did not deny this practice. This is a prohibited investigation method. It does not serve any purpose inherent to an investigation. It is degrading and infringes an individual’s human dignity. 

        26. The “Shabach” method is composed of several components: the cuffing of the suspect, seating him on a low chair, covering his head with a sack, and playing loud music in the area.  Does the general power to investigate authorize any of the above acts? Our point of departure is that there are actions which are inherent to the investigatory power. Compare C.A. 4463/94, supra. Therefore, we accept that the suspect’s cuffing, for the purpose of preserving the investigators’ safety, is included in the general power to investigate. Compare HCJ 8124/96 Mubarak v. The GSS(unreported decision). Provided the suspect is cuffed for this purpose, it is within the investigator’s authority to cuff him. The state’s position is that the suspects are indeed cuffed with the intention of ensuring the investigators’ safety or to prevent the suspect from fleeing from legal custody. Even petitioners agree that it is permissible to cuff a suspect in such circumstances and that cuffing constitutes an integral part of an interrogation. The cuffing associated with the “Shabach” position, however, is unlike routine cuffing. The suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair’s seat and back support, while the other is tied behind him, against the chair’s back support. This is a distorted and unnatural position. The investigators’ safety does not require it. Similarly, there is no justification for handcuffing the suspect’s hands with especially small handcuffs, if this is in fact the practice. The use of these methods is prohibited. As has been noted, “cuffing that causes pain is prohibited.” Mubarak supra. Moreover, there are other ways of preventing the suspect from fleeing which do not involve causing pain and suffering.

        27. The same applies to seating the suspect in question in the “Shabach” position. We accept that seating a man is inherent to the investigation. This is not the case, however, when the chair upon which he is seated is a very low one, tilted forward facing the ground, and when he is seated in this position for long hours. This sort of seating is not authorized by the general power to interrogate. Even if we suppose that the seating of the suspect on a chair lower than that of his investigator can potentially serve a legitimate investigation objective—for instance, to establish the “rules of the game” in the contest of wills between the parties, or to emphasize the investigator’s superiority over the suspect—there is no inherent investigative need to seat the suspect on a chair so low and tilted forward towards the ground, in a manner that causes him real pain and suffering.  Clearly, the general power to conduct interrogations does not authorize seating a suspect on a tilted chair, in a manner that applies pressure and causes pain to his back, all the more so when his hands are tied behind the chair, in the manner described. All these methods do not fall within the sphere of a “fair” interrogation. They are not reasonable. They infringe the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner. They are not to be deemed as included within the general power to conduct interrogations.

        28. We accept that there are interrogation related concerns regarding preventing contact between the suspect under interrogation and other suspects, and perhaps even between the suspect and the interrogator. These concerns require means to prevent the said contact. The need to prevent contact may, for instance, flow from the need to safeguard the investigators’ security, or the security of the suspects and witnesses. It can also be part of the “mind game” which pits the information possessed by the suspect, against that found in the hands of his investigators. For this purpose, the power to interrogate—in principle and according to the circumstances of each particular case—may include the need to prevent eye contact with a given person or place. In the case at bar, this was the explanation provided by the state for covering the suspect’s head with a sack, while he is seated in the “Shabach” position.  From what was stated in the declarations before us, the suspect’s head is covered with a sack throughout his “wait” in the “Shabach” position.  It was argued that the head covering causes the suspect to suffocate. The sack is large, reaching the shoulders of the suspect. All these methods are not inherent to an interrogation. They are not necessary to prevent eye contact between the suspect being interrogated and other suspects.  Indeed, even if such contact is prevented, what is the purpose of causing the suspect to suffocate?  Employing this method is not related to the purpose of preventing the said contact and is consequently forbidden. Moreover, the statements clearly reveal that the suspect’s head remains covered for several hours, throughout his wait. For these purposes, less harmful means must be employed, such as letting the suspect wait in a detention cell. Doing so will eliminate any need to cover the suspect’s eyes. In the alternative, the suspect’s eyes may be covered in a manner that does not cause him physical suffering. For it appears that, at present, the suspect’s head covering—which covers his entire head, rather than eyes alone—for a prolonged period of time, with no essential link to the goal of preventing contact between the suspects under investigation, is not part of a fair interrogation. It harms the suspect and his dignity. It degrades him. It causes him to lose his sense of time and place. It suffocates him. All these things are not included in the general authority to investigate. In the cases before us, the State declared that it will make an effort to find a “ventilated” sack. This is not sufficient. The covering of the head in the circumstances described, as distinguished from the covering of the eyes, is outside the scope of authority and is prohibited. 

        29. Cutting off the suspect from his surroundings can also include preventing him from listening to what is going on around him. We are prepared to assume that the authority to investigate an individual may include preventing him from hearing other suspects under investigation or voices and sounds that, if heard by the suspect, risk impeding the interrogation’s success. At the same time, however, we must examine whether the means employed to accomplish this fall within the scope of a fair and reasonable interrogation. In the case at bar, the detainee is placed in the “Shabach” position while very loud music is played. Do these methods fall within the scope or the general authority to conduct interrogations? Here too, the answer is in the negative. Being exposed to very loud music for a long period of time causes the suspect suffering. Furthermore, the entire time, the suspect is tied in an uncomfortable position with his head covered. This is prohibited. It does not fall within the scope of the authority to conduct a fair and effective interrogation. In the circumstances of the cases before us, the playing of loud music is a prohibited.

        30. To the above, we must add that the "Shabach" position employs all the above methods simultaneously. This combination gives rise to pain and suffering. This is a harmful method, particularly when it is employed for a prolonged period of time. For these reasons, this method is not authorized by the powers of interrogation. It is an unacceptable method. "The duty to safeguard the detainee's dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially his dignity." Cr. A. 7223/95 The State of Israel v. Rotenstein

        A similar—though not identical—combination of interrogation methods were discussed in the case of Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 3 (1976). In that case, the Court examined five interrogation methods used by England to investigate detainees suspected of terrorist activities in Northern Ireland. The methods included protracted standing against a wall on the tip of one's toes, covering of the suspect's head throughout the detention (except during the actual interrogation), exposing the suspect to very loud noise for a prolonged period of time, and deprivation of sleep, food and drink. The Court held that these methods did not constitute "torture." However, since they subjected the suspect to "inhuman and degrading" treatment, they were nonetheless prohibited.

        31. The interrogation of a person is likely to be lengthy, due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately. See, e.g., Mubaraksupra; HCJ 5318/95 Hajazi v. GSS (unreported decision). Indeed, a person undergoing interrogation cannot sleep like one who is not being interrogated. The suspect, subject to the investigators' questions for a prolonged period of time, is at times exhausted. This is often the inevitable result of an interrogation.  This is part of the "discomfort" inherent to an interrogation. This being the case, depriving the suspect of sleep is, in our opinion, included in the general authority of the investigator. Compare HCJ 3429/94 Shbana v. GSS (unreported decision). Justice Shamgar noted as such in Cr. A. 485/76 Ben Loulou v. The State of Israel (unreported decision):

        The interrogation of crimes and, in particular, murder or other serious crimes, cannot be accomplished within an ordinary work day...The investigation of crime is essentially a game of mental resistance...For this reason, the interrogation is often carried out at frequent intervals. This, as noted, causes the investigation to drag on ...and requires diligent insistence on its momentum and consecutiveness.

         

        The above described situation is different from one in which sleep deprivation shifts from being a "side effect" of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or "breaking" him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.

        32. All these limitations on an interrogation, which flow from the requirement that an interrogation be fair and reasonable, is the law with respect to a regular police interrogation. The power to interrogate granted to the GSS investigator is the same power the law bestows upon the ordinary police investigator. The restrictions upon the police investigations are equally applicable to GSS investigations. There is no statute that grants GSS investigators special interrogating powers that are different or more significant than those granted the police investigator. From this we conclude that a GSS investigator, whose duty it is to conduct the interrogation according to the law, is subject to the same restrictions applicable to police interrogators.

        Physical Means and the "Necessity" Defense

         

        33. We have arrived at the conclusion that GSS personnel who have received permission to conduct interrogations, as per the Criminal Procedure Statute [Testimony], are authorized to do so. This authority—like that of the police investigator—does not include most of the physical means of interrogation in the petition before us. Can the authority to employ these methods be anchored in a legal source beyond the authority to conduct an interrogation? This question was answered by the state in the affirmative. As noted, our law does not contain an explicit authorization permitting the GSS to employ physical means. An authorization of this nature can, however, in the state’s opinion, be obtained in specific cases by virtue of the criminal law defense of “necessity,” as provided in section 34(1) of the Penal Law. The statute provides: 

        A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person, from substantial danger of serious harm, in response to particular circumstances during a specific time, and absent alternative means for avoiding the harm.

         

        The state’s position is that by virtue of this defense against criminal liability, GSS investigators are authorized to apply physical means—such as shaking—in the appropriate circumstances and in the absence of other alternatives, in order to prevent serious harm to human life or limb. The state maintains that an act committed under conditions of “necessity” does not constitute a crime. Instead, the state sees such acts as worth committing in order to prevent serious harm to human life or limb. These are actions that society has an interest in encouraging, which should be seen as proper under the circumstances. In this, society is choosing the lesser evil. Not only is it legitimately permitted to engage in fighting terrorism, it is our moral duty to employ the means necessary for this purpose. This duty is particularly incumbent on the state authorities—and, for our purposes, on the GSS investigators—who carry the burden of safeguarding the public peace. As this is the case, there is no obstacle preventing the investigators’ superiors from instructing and guiding them as to when the conditions of the “necessity” defense are fulfilled. This, the state contends, implies the legality of the use of physical means in GSS interrogations. 

        In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information? The state answers in the affirmative. The use of physical means should not constitute a criminal offence, and their use should be sanctioned, according to the state, by the “necessity” defense.

        34. We are prepared to assume, although this matter is open to debate, that the “necessity defense” is available to all, including an investigator, during an interrogation, acting in the capacity of the state. See A. Dershowitz, Is it Necessary to Apply ‘Physical Pressure’ to Terrorists—And to Lie About It?, 23 Israel L. Rev. 193 (1989); K. Bernsmann, Private Self-Defense and Necessity in German Penal Law and in the Penal Law Proposal— Some Remarks, 30 Israel L. Rev. 171, 208-10 (1998). Likewise, we are prepared to accept—although this matter is equally contentious—that the “necessity defense” can arise in instances of “ticking bombs,” and that the phrase "immediate need" in the statute refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or even in a few weeks, provided the danger is certain to materialize and there is no alternative means of preventing it. See M. Kremnitzer, The Landau Commission Report—Was the Security Service Subordinated to the Law or the Law to the Needs of the Security Service?, 23 Israel L. Rev. 216, 244-47 (1989). In other words, there exists a concrete level of imminent danger of the explosion’s occurrence. See M. Kremnitzer & R. Segev, The Petition of Force in the Course of GSS Interrogations- A Lesser Evil?, 4 Mishpat U’Memshal 667, 707 (1989); See also S.Z. Feller, Not Actual “Necessity” but Possible “Justification”; Not “Moderate Pressure”, but Either “Unlimited” or “None at All”, 23 Israel L. Rev. 201, 207 (1989).

        Consequently we are prepared to presume, as was held by the Report of the Commission of Inquiry, that if a GSS investigator—who applied physical interrogation methods for the purpose of saving human life—is criminally indicted, the “necessity defense” is likely to be open to him in the appropriate circumstances. See Cr. A. 532/91 Anonymous v. The State of Israel (unreported decision). A long list of arguments, from the fields of ethics and political science, may be raised in support of and against the use of the “necessity defense.” See Kremnitzer & Segev, supra, at 696; M.S. Moor, Torture and the Balance of Evils, 23 Israel L. Rev. 280 (1989); L. Shelf, The Lesser Evil and the Lesser Good—On the Landau Commission’s Report, Terrorism and Torture, 1 Plilim 185 (1989); W.L. & P.E. Twining, Bentham on Torture, 24 Northern Ireland Legal Quarterly 305 (1973); D. Stetman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U’ Mimshal 161, 175 (1997); A. Zuckerman, Coersion and the Judicial Ascertainment of  Truth, 23 Israel L. Rev. 357 (1989). This matter, however, has already been decided under Israeli law. Israeli penal law recognizes the “necessity defense.”                               

         35. Indeed, we are prepared to accept that, in the appropriate circumstances, GSS investigators may avail themselves of the “necessity defense” if criminally indicted. This, however, is not the issue before this Court. We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect. We are dealing with a different question. The question before us is whether it is possible, ex ante, to establish permanent directives setting out the physical interrogation means that may be used under conditions of “necessity.” Moreover, we must decide whether the “necessity defense” can constitute a basis for the authority of a GSS investigator to investigate, in the performance of his duty.  According to the state, it is possible to imply from the “necessity defense”—available post factum to an investigator indicted of a criminal offence—the ex ante legal authorization to allow the investigator to use physical interrogation methods. Is this position correct?

        36. In the Court’s opinion, the authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity defense.” The “necessity defense” does not constitute a source of authority, which would allow GSS investigators to make use physical means during the course of interrogations.  The reasoning underlying our position is anchored in the nature of the “necessity defense.” The defense deals with cases involving an individual reacting to a given set of facts. It is an improvised reaction to an unpredictable event. See Feller, supra at 209. Thus, the very nature of the defense does not allow it to serve as the source of authorization. Authorization of administrative authority is based on establishing general, forward looking criteria, as noted by Professor Enker:

        Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values...The defense of necessity does not define a code of primary normative behavior. Necessity is certainly not a basis for establishing a broad detailed code of behavior such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like. 

         

        See A. Enker, The Use of Physical Force in Interrogations and the Necessity Defensein Israel and International Human Rights Law: The Issue of Torture 61, 62 (1995). In a similar vein, Kremnitzer and Segev note:

        The basic rationale underlying the necessity defense is the impossibility of establishing accurate rules of behavior in advance, appropriate in concrete emergency situations, whose circumstances are varied and unexpected. From this it follows, that the necessity defense is not well suited for the regulation of a general situation, the circumstances of which are known and may repeat themselves. In such cases, there is no reason for not setting out the rules of behavior in advance, in order that their content be determined in a thought out and well-planned manner, which would allow them to apply in a uniform manner to all.

        The “necessity defense” has the effect of allowing one who acts under the circumstances of “necessity” to escape criminal liability. The “necessity defense” does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act—due to the “necessity defense”—does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right. It shall be noted that the Commission of Inquiry did not conclude that the “necessity defense” is the source of authority for employing physical means by GSS investigators during the course of their interrogations. All that the Commission of Inquiry determined was that, if an investigator finds himself in a situation of “necessity,” forcing him to choose the “lesser evil”—harming the suspect for the purpose of saving human lives—the “necessity defense” shall be available to him. Indeed, the Commission of Inquiry noted that, “the law itself must ensure a proper framework governing the actions of the security service with respect to the interrogation of hostile terrorist activities and the related problems particular to it.” Id. at 328.

        37. In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability. The principle of “necessity” cannot serve as a basis of authority. See Kremnitzer, supra at 236. If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would not flow from the “necessity defense,” but rather from the “justification” defense. This defense is provided for in section 34(13) of the Penal Law, which states:

        A person shall not bear criminal liability for an act committed in one of the following cases:

        (1) He was obliged or authorized by law to commit it.

         

        This "justification" defense to criminal liability is rooted in an area outside the criminal law. This “external” law serves as a defense to criminal liability. This defense does not rest upon “necessity,” which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the answer is found in the laws of detention, which is external to the Penal Law. If a man is killed as a result of this application of force, the “justification” defense will likely come into play. See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor. The “necessity” defense cannot constitute the basis for rules regarding an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation. The power to enact rules and to act according to them requires legislative authorization. In such legislation, the legislature, if it so desires, may express its views on the social, ethical and political problems of authorizing the use of physical means in an interrogation. Naturally, such considerations did not come before the legislature when the “necessity” defense was enacted. See Kremnitzer, supra, at 239-40.  The “necessity” defense is not the appropriate place for laying out these considerations. See Enker, supra, at 72.

        Granting GSS investigators the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the suspect's dignity and liberty, raises basic questions of law and society, of ethics and policy, and of the rule of law and security. These questions and the corresponding answers must be determined by the legislative branch. This is required by the principle of the separation of powers and the rule of law, under our understanding of democracy. See HCJ 3267/97 Rubinstein v. Minister of Defense.

        38. We conclude, therefore, that, according to the existing state of the law, neither the government nor the heads of the security services have the authority to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself. Similarly, the individual GSS investigator—like any police officer—does not possess the authority to employ physical means that infringe a suspect’s liberty during the interrogation, unless these means are inherent to the very essence of an interrogation and are both fair and reasonable.

        An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity defense.” Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the “necessity defense” does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from “necessity.” A statutory provision is necessary to authorize the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation,” and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity defense” cannot serve as a basis for such authority.

        A Final Word 

         

        39. This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

        This having been said, there are those who argue that Israel’s security problems are too numerous, and require the authorization of physical means.  Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The debate must occur there. It is there that the required legislation may be passed, provided, of course, that the law “befit[s] the values of the State of Israel, is enacted for a proper purpose, and [infringes the suspect's liberty] to an extent no greater than required." See article 8 of the Basic Law: Human Dignity and Liberty.            

        40. Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged. Therefore, in deciding the law, we must act according to our purest conscience. We recall the words of Deputy President Landau, in HCJ 390/79 Dawikat v. The State of Israel, at 4:

         

        We possess proper sources upon which to construct our judgments and have no need—and, indeed, are forbidden—to allow our personal views as citizens to influence our decisions. Still, I fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large will not be interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged. But what can we do, for this is our role and our obligation as judges?

         

        The Commission of Inquiry pointed to the “difficult dilemma between the imperative to safeguard the very existence of the State of Israel and the lives of its citizens, and between the need to preserve its character—a country subject to the rule of law and basic moral values.” Report of the Commission, at 326. The commission rejected an approach that would consign our fight against terrorism to the twilight shadows of the law. The commission also rejected the “ways of the hypocrites, who remind us of their adherence to the rule of law, even as they remain willfully blind to reality.” Id. at 327. Instead, the Commission chose to follow “the way of truth and the rule of law.” Id. at 328. In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner open to examination to all of Israeli society.

        Consequently, it is decided that the order nisi be made absolute. The GSS does not have the authority to “shake” a man, hold him in the “Shabach” position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a “frog crouch” position 

        4

        and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the “necessity defense,” found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. Our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.

         

        Deputy President S. Levin

        I agree. 

        Justice T. Or 

        I agree. 

        Justice E. Mazza 

        I agree.

        Justice M. Cheshin

        I agree.

        Justice I. Zamir

        I agree.

        Justice T. Strasberg-Cohen

        I agree. 

        5

        Justice D. Dorner

        I agree.

        Justice Y. Kedmi

        I accept the conclusion reached by my colleague, the President, that the use of exceptional interrogation methods, according to the directives of the Ministerial Committee, "has not been authorized, and is illegal." I am also of the opinion that the time has come for this issue to be regulated by explicit, clear, and unambiguous legislation. 

        Even so, it is difficult for me to accept that, due to the absence of explicit legislation, the state should be helpless in those rare emergencies defined as "ticking bombs," and that the state would not be authorized to order the use of exceptional interrogation methods in such circumstances. As far as I am concerned, authority does exist under such circumstances, a result of the basic obligation of the state—like all countries of the world—to defend its existence, its well-being, and to safeguard the lives of its citizens. It is clear that, in those circumstances, the state—as well as its agents—will have the natural right of "self-defense," in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens. 

        Against this background, and in order to prevent a situation where the state stands helpless while the "bomb ticks" before our eyes, I suggest that this judgment be suspended for one year. During that year, the GSS will be allowed to employ exceptional interrogative methods in those rare cases of "ticking bombs," on the condition that explicit authorization is granted by the Attorney-General. 

        Such a suspension would not limit our present ruling that the use of exceptional interrogation methods—those that rely on directives of the Ministerial Committee—are illegal. The suspension of the judgment would not constitute authorization to continue acting according to those directives, and the authorization of the Attorney-General would not legalize the performance of an illegal action. This suspension would only affect the employment of exceptional interrogation methods under the emergency circumstances of a "ticking bomb."

        During such a suspension period, the Knesset would be given an opportunity to consider the issue of exceptional interrogation methods in security investigations, both in general and in times of emergency. The GSS would be given the opportunity to cope with emergency situations until the Knesset considers the issue. Meanwhile, the GSS would also have an opportunity to adapt, after a long period during which the directives of the Ministerial Committee have governed.

        I therefore join the judgment of the President, subject to my proposal to suspend the judgment for a period of one year. 

        Decided according to the opinion of the President.

        September 6, 1999

      • 1.2.6 Alex Beasley and Bob Levenson - "A Thin Blue Line Between Brutality And Necessity," Orlando Sentinel, June 9, 1991

  • 2 IV.B. Excuse

    • 2.1 IV.B.i. Duress

      Excuses, unlike justifications, do not assert that an action was morally right: instead, they deem an action to have been wrong, but less blameworthy under the circumstances. Every category of excuse, however, raises problems. In the case of duress, the question becomes what level of duress is necessary to excuse a crime, and what crimes can it excuse? As you will see, there is both a traditional duress doctrine and a reformed doctrine promoted by the Model Penal Code. Consider the differences between duress (an excuse) and necessity (a justification). What is the distinction between them, and why does blameworthiness attach to one but not the other?

You've reached the bottom of your content preview.
To view the rest in your browser, click here.
To export the complete content in DOC format, click the blue export button in the upper right corner of this page.

(Note: If you view the entire playlist, any changes you've made to export settings will be lost. Large playlists may temporarily freeze your browser while loading, as well.)