Self-Defense
Depending on the specific facts of the situation, an accused person
may claim that use of deadly force was justified to excuse his or her
actions, which would otherwise be a crime. Self-defense or the defense
of another is an affirmative defense that an accused may assert against a
criminal charge for an assault or homicide offense. The term “affirmative
defense” means the accused, not the prosecutor, must prove by a
preponderance of the evidence that he acted in self-defense or in defense of another. In other words, the defendant must prove that it is more
probable than not that his use of deadly force was necessary due to the
circumstances of the situation. Whether this affirmative defense applies to the situation or whether it will likely succeed against criminal charges depends heavily on the specific facts and circumstances of each situation. The Ohio Supreme Court has explained that a defendant must prove three conditions to establish that he acted in defense of himself or another.
Condition 1: Defendant Is Not At Fault
First, the defendant must prove that he was not at fault for creating
the situation. The defendant cannot be the first aggressor or initiator.
However, in proving the victim’s fault, a defendant cannot point to other
unrelated situations where the victim was the aggressor. Remember, the
focus is on the specific facts of the situation at hand.
If you escalate a confrontation by throwing the first punch, attacking,
or drawing your handgun, you are the aggressor. Most likely in this
situation, you cannot legitimately claim self-defense nor would you
likely succeed in proving your affirmative defense.
If you have no means to escape the other person’s attack and you
reasonably, honestly believe that you are about to be killed or receive
serious bodily harm, you may be able to use deadly force if that is the
only way for you to escape that danger.
Condition 2: Reasonable and Honest Belief of Danger
Second, the defendant must prove that, at the time, he had a real belief
that he was in immediate danger of death or great bodily harm and that
his use of deadly force was the only way to escape that danger. Bear
in mind that deadly force may only be used to protect against serious
bodily harm or death. The key word is serious.
In deciding whether the bodily harm was serious, the judge or jury
can consider how the victim attacked the defendant, any weapon the
victim had, and how he used it against the defendant. Minor bruises or
bumps from a scuffle do not meet the legal definition of serious. In court
cases, rape has been determined to be serious bodily harm, as has being
attacked with scissors. Serious bodily harm may also result from being
struck with an object that can cause damage, such as a baseball bat or a
wooden club. Important is the defendant’s belief that he is in immediate serious danger. The circumstances and conditions of the situation or
confrontation must cause the defendant to reasonably and honestly
believe that he is about to be killed or receive serious bodily harm.In deciding if the belief was reasonable and honest, the judge or jury
will envision themselves in the defendant’s “shoes” and consider his
physical characteristics, emotional state, mental status, and knowledge
as well as the victim’s actions and words. The victim must have acted
in a threatening manner. Words alone, regardless of how abusive or
provoking, or threats of future harm (“I’m going to kill you tomorrow”)
do not justify the use of deadly force. If the person can escape danger by
means such as leaving or using less than deadly force, he must use those
means. Whether the defendant or the victim was under the influence of drugs or alcohol may also be considered.
Condition 3: Duty to Retreat
A defendant must show that he did not have a duty to retreat or avoid
the danger. A person must retreat or avoid danger by leaving or voicing
his intention to leave and ending his participation in the confrontation.
If the person retreats and the other continues to fight, the person who
left the confrontation may be later justified in using deadly force when
he can prove all three conditions of self-defense existed, even if he was
honestly mistaken about the existence of immediate danger.
In Ohio, there is no duty to retreat from one’s own home. There is no
duty to retreat if there is no manner by which you can retreat safely.
However, being in one’s own home is not a license to use deadly force
against an attacker. The person who is attacked in his own home,
without fault of his own, may stand his ground and use deadly force
only if he reasonably and honestly believed that deadly force was
necessary to prevent serious bodily harm or death. If the person does
not have this belief or he created the confrontation, he cannot use deadly
force and must leave the situation, even if he is in his own home.
Defense of Others
A person may defend another only if the protected person would have
had the right to use self-defense. Under Ohio law, a person may defend
family members, friends or strangers. However, just as if he were
protecting himself, a person cannot use any more force than is reasonable
and necessary to prevent the harm threatened. A defendant, who claims he used deadly force to protect another, has to prove that he reasonably and honestly believed that the person he protected was in immediate danger of serious bodily harm or death and that deadly force was the only way to protect the person from that danger. Furthermore, the defendant must also show that the protected person was not at fault for creating the situation and did not have a duty to leave or avoid the situation.
Conclusion: Self-Defense Issues
If the defendant fails to prove any one of the three conditions for selfdefense
or defense of another, he fails to justify his use of deadly force. If
convicted, an individual will be sentenced accordingly."
