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Justifiable Homicide

Justifiable homicide is the killing of another that is either commanded or authorized by law.  Categories of justifiable homicide include:

  • Self defense
  • Defense of others
  • Defense of one’s dwelling
  • Killing done under public authority or during an attempt to arrest, prevent escape or prevent crime

Self Defense, Defense of Others and Defense of One’s Dwelling


Self defense and/or defense of others, if shown, establishes justifiable homicide  In other words, it establishes a lawful killing and therefore is an absolute defense to any level of homicide charged against a defendant.  In order to show that a defendant acted in lawful self defense, or in the alternative in defense of another, it must be shown that the defendant reasonably believed that they, or someone else, was in imminent danger of being killed or suffering great bodily injury (GBI), that the immediate use of deadly force was necessary to defend against that danger, and the defendant used no more force than reasonably necessary to defend against that danger.  With defense of one’s dwelling, it must be additionally shown that a defendant reasonably believed that they were defending a home against a decedent who intended to harm someone inside the home.  Imminence of threat means that the defendant was acting on a threat that must be immediately dealt with; the threat cannot be prospective or one that is going to happen in the near future. 


1.      Reasonable belief

In order to show justifiable homicide, a defendant’s belief of death or GBI must be a reasonable belief.  Deciding the reasonableness of a belief is a juror decision based on the circumstances presented.  It need not be shown that actual danger existed, only that under the circumstances a reasonable person would have believed that death or GBI were imminent.  GBI is a substantial injury; the injury must be more than minor or moderate.  A threat is sufficient to establish a reasonable belief, even if the information a defendant receives is inaccurate or untrue.  The defendant must believe that the information is true.

            Apart from immediate circumstances the defendant may be in, other factors which are allowed to be considered in deciding reasonableness are: past threats by the victim, past harm by the victim, and if the defendant, or someone they know, had been threatened or harmed in the past.


2.      Force necessary

If a defendant uses more force than is reasonable under the circumstances, the homicide is not justified.  For example, if a victim is threatening to slap someone across the face, a defendant responding by hitting the victim over the head with a bat and killing them, is not a proportional response.  Because it is not proportional to the threatened harm, it is more force than reasonably necessary, and therefore it does not establish self defense.   Crimes which have been established as threatening substantial harm are: murder, mayhem, rape and robbery.  These crimes are not all inclusive though, and any situation which can be shown to threaten death or GBI would qualify.

3.      No requirement of retreat

            A defendant is not required to retreat when the elements of self-defense are established.  He or she is entitled to stand his or her ground and defend himself or herself, and if reasonably necessary to pursue a victim until the threat of death or GBI has passed.  This is so even if safety could have been achieved by retreating.

4.      Prosecution’s burden

It is the prosecutor’s burden to prove beyond a reasonable doubt that a killing was not justified.  When there is evidence of self-defense or defense of others, the justification must be disproved by the prosecution beyond a reasonable doubt.  

5.      Defendant is initial aggressor

A defendant cannot claim self-defense if they created the dangerous situation.  For example, if a defendant began a fight, and then the decedent fought back in lawful self-defense, the defendant cannot then claim self-defense in killing. 

There are two exceptions to this rule.  The first exception to this would be if the initial aggressor communicates that they want to end the fight, and the decedent then continues to attack, the aggressor may then use self-defense as if they had not been the initial aggressor.  Another exception is if the defendant began the fight, but the decedent then responded with sudden escalated force, a defendant can then claim self-defense.

6.      Imperfect Self Defense

Imperfect Self Defense is not a full defense to murder but will reduce a murder to manslaughter if the elements are proven.  In order to show imperfect self-defense it must be shown that the defendant believed that they had to defend themselves, or someone else, from imminent danger of being killed or suffering GBI, and that their belief was unreasonable.  In the example earlier where the defendant responded to a face slap with a baseball bat, they could claim imperfect self-defense.  It would be a jury decision of whether the elements were sufficiently met.

7.      Heat of Passion

Heat of passion is also not a complete defense to murder but will also reduce a murder to manslaughter.  In order to show that a defendant killed in the heat of passion, it must be shown that the defendant was provoked by something which would cause a reasonable person to act rashly and without due deliberation, and then acted rashly and under the influence of intense emotion that obscured his or her reasoning.  This is commonly used in scenarios for spouses who walk in on a cheating spouse and then kill one of the persons involved. The killing must occur under the stress of the provocation.  If there is a sufficient period of time to pass for a person to “cool off”, heat of passion cannot be claimed.


Homicide Done During Exercise of Privilege

A defendant is not guilty of any level of homicide if they were a public officer, or acting at the direction of a public officer’s command for assistance, the killing was committed while lawfully taking someone into custody, the killing was necessary to accomplish that lawful purpose, and the defendant had probable cause to believe that the decedent posed a threat of serious physical harm to defendant or others. 

Non-police officers trying to complete citizen’s arrest have a much higher standard to satisfy to prove justifiable homicide.  In order to not be guilty of murder, the defendant must show that they were attempting to arrest or detain someone for a crime that threatened death or GBI, that the decedent actually committed that crime, the defendant has reason to believe that the decedent committed that crime, that the defendant had reason to believe that the decedent posed a threat of serious physical harm to defendant or others, and the killing was necessary to prevent decedent’s escape.  If there is only a belief that the decedent committed the crime, as opposed to actual knowledge, a non-police officer is not justified in using deadly force to detain that decedent. 



·         Accident

·         Accident by Heat of Passion



A homicide that is a result of an accident or misfortune makes a killing excused and therefore not unlawful.  In order to find that the homicide is a result of an accident, the defendant must be doing a lawful act in a lawful way, with usual and ordinary caution, and without any unlawful intent.  Usual and ordinary caution is just acting in a way a reasonably careful person would act in the same or similar situation and is a question of fact for a jury. 


Accident as a Result of Heat of Passion

Accident in the heat of passion also makes a homicide excusable.  In order to find that the homicide is excused, the defendant must act in the heat of passion, was provoked or drawn into combat by the decedent, the defendant did not take undue advantage of decedent, did not use a deadly weapon, did not kill in a cruel or unusual way, did not intend to kill decedent, did not act with a conscious disregard of the danger to human life, and did not act with criminal negligence.

The elements for accident as a result of heat of passion are the same as they are explained above when used to reduce murder to manslaughter. Accident as a result of heat of passion is different from voluntary manslaughter because there is no criminal intent when the death is a result of an accident.

Criminal negligence is when a defendant acts in a way that creates a high risk of death or GBI and a reasonable person would have known that acting in that way would create such a risk.  In other words, a person acts with criminal negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. 

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