Depending on the specic facts of the situation, an accused person may claim that use of deadly force was justied to excuse his actions, which
would otherwise be a crime. Self-defense or the defense of another is an
afrmative defense that an accused may assert against a criminal charge for
an assault or homicide offense.
The term “afrmative 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 provethat it is more probable than not that his use of deadly force was necessary due to the circumstances of the situation.
Whether this afrmative defense applies to the situation or whether it willlikely succeed against criminal charges depends heavily on the specic
facts and circumstances of each situation. The Ohio Supreme Court hasexplained that a defendant must prove three conditions to establish that heacted 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 rst aggressor or initiator.
However, in proving the victim’s fault, a defendant cannot point to otherunrelated situations in which the victim was the aggressor. Remember, the
focus is on the specic facts of the situation at hand.If you escalate a confrontation by throwing the rst 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 afrmative defense.
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 thathis use of deadly force was the only way to escape that danger. Bear inmind 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 canconsider how the victim attacked the defendant, any weapon the victimhad, and how he used it against the defendant. Minor bruises or bumps
from a scufe probably do not meet the legal denition of “serious.” In
court cases, rape has been determined to be serious bodily harm, as hasbeing attacked with scissors. Serious bodily harm also may result frombeing struck with an object that can cause damage, such as a baseball bator a wooden club. The defendant’s belief that he is in immediate serious danger isimportant. The defendant’s belief must be reasonable, not purely speculative. In deciding if the belief was reasonable and honest, the judgeor jury will envision themselves standing in the defendant’s shoes andconsider his physical characteristics, emotional state, mental status, andknowledge; the victim’s actions and words; and all other facts regarding the encounter. 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
Condition 3: Duty to Retreat
A defendant must show that he did not have a duty to retreat or avoid thedanger. A person must retreat or avoid danger by leaving or voicing hisintention to leave and ending his participation in the confrontation.
If one person retreats and the other continues to ght, the person wholeft the confrontation may later be justied in using deadly force when he
can prove all three conditions of self-defense existed. You should alwaystry to retreat from a confrontation before using deadly force if retreating does not endanger yourself or others.If the person can escape danger by means such as leaving or using less thandeadly force, he must use those means. If you have no means to escapethe other person’s attack and you reasonably, honestly believe that you areabout to be killed or receive serious bodily harm, you may be able to usedeadly force if that is the only way for you to escape that danger.
“Castle Doctrine” generally encompasses the idea that a person does nothave a duty to retreat from the residence he lawfully occupies before using force in self-defense or defense of another. Additionally, there is no duty to retreat if a person is lawfully in his vehicle or is lawfully an occupant in a vehicle owned by an immediate family member of that person.However, being a lawful occupant of a residence or vehicle is not a licenseto use deadly force against an attacker. The person who is attacked, withoutfault of his own, may use deadly force only if he reasonably and honestly believed that deadly force was necessary to prevent serious bodily harmor death. If the person does not have this belief, he should not use deadly force. Again, if it does not put your life or the life of others in danger, youshould withdraw from the confrontation if it is safe for you to do so. The law presumes you to have acted in self-defense or defense of another when using deadly force if the victim had unlawfully and without privilegeentered or was in the process of entering the residence or vehicle youoccupy. The presumption does not apply if the defendant was unlawfully inthat residence or vehicle. The presumption does not apply if the victim hada right to be in, or was a lawful resident of, the residence or vehicle. The presumption of self-defense is a rebuttable presumption. The term“rebuttable presumption” means the prosecutor, and not the defendant,carries the burden of producing evidence contrary to the facts that thelaw presumes. However, a rebuttable presumption does not relieve the
defendant of the burden of proof. If the prosecutor provides sufcient
evidence to prove that the defendant created the confrontation or that the
use of deadly force was not reasonably necessary to prevent death or greatbodily harm, then the presumption of self-defense no longer exists.
Statutory Reference(s): ORC 2901.05 sets forth the rebuttable presumption.ORC 2901.09(B) establishes that there is no duty to retreat before using force if a person is a lawful occupant of his vehicle or a lawful occupant in a vehicle owned by an immediate family member