Conn. Crim. Jury Instr. 2.8-1

The evidence in this case raises the issue of (self-defense / the defense of others). (Self-defense /

The defense of others) applies to the charge[s] of <insert applicable crimes> [and the lesser

included offense[s] of <insert lesser included offenses>].

After you have considered all of the evidence in this case, if you find that the state has proved

beyond a reasonable doubt each element of a crime to which (self-defense / defense of others)

applies, you must go on to consider whether or not the defendant acted in (self-defense / the

defense of others). In this case you must consider this defense in connection with count[s] __ of

the information.

A person is justified in the use of force against another person that would otherwise be illegal if

(he/she) is acting in the defense of (self / others). It is a complete defense to certain crimes,

including <insert applicable crimes>. When, as in this case, evidence of (self-defense / the

defense of others) is introduced at trial, the state must not only prove beyond a reasonable doubt

all the elements of the crime charged to obtain a conviction, but must also disprove beyond a

reasonable doubt that the defendant acted in (self-defense / the defense of others). If the state

fails to disprove beyond a reasonable doubt that the defendant acted in (self-defense / the defense

of others), you must find the defendant not guilty despite the fact that you have found the

elements of the crime proved beyond a reasonable doubt. The defendant has no burden of proof

whatsoever with respect to this defense.

There is a statute that defines (self-defense / the defense of others) and you are to apply that

definition in reviewing the evidence in this case and not apply any common or colloquial

meaning that you may have heard before. The statute defining (self-defense / the defense of

others) reads in pertinent part as follows:

a person is justified in using reasonable physical force upon another person to defend

(himself/herself/a third person) from what (he/she) reasonably believes to be the use

or imminent use of physical force, and (he/she) may use such degree of force which

(he/she) reasonably believes to be necessary for such purpose.

The statute requires that, before a defendant uses physical force upon another person to defend

(himself/herself/a third person), (he/she) must have two “reasonable beliefs.” The first is a

reasonable belief that physical force is then being used or about to be used upon (him/her/a third

person). The second is a reasonable belief that the degree of force (he/she) is using to defend

(himself/herself/a third person) from what (he/she) believes to be an ongoing or imminent use of

force is necessary for that purpose.

Deadly and non-deadly physical force

The law distinguishes non-deadly physical force from deadly physical force. “Physical force”

means actual physical force or violence or superior physical strength. The term “deadly physical

force” is defined by statute as physical force which can reasonably be expected to cause death or

serious physical injury. Under this definition, the physical force used by the defendant need not

actually have caused a death or a serious physical injury in order to be considered deadly

physical force, nor need it have been expected or intended by the defendant to result in such

serious consequences. Instead, what determines whether the defendant used deadly physical

force is whether the force actually used by the defendant could reasonably have been expected to

cause death or serious physical injury. “Physical injury” is defined by statute as impairment of

physical condition or pain, and “serious physical injury” is defined as physical injury which

creates a substantial risk of death, or which causes “serious disfigurement,” serious impairment

of health or serious loss or impairment of the function of any bodily organ.

It is up to you to determine whether the defendant used deadly physical force or non-deadly

physical force against <insert name of the other person>. You are to make that determination

after considering all the evidence. If the state claims that the defendant used deadly physical

force, the state must prove that beyond a reasonable doubt. The first question you must resolve,

then, is whether the level of force used by the defendant rises to the level of deadly physical

force, or is some lower degree of physical force.

Reasonable beliefs

Once you have determined whether the defendant has used deadly or non-deadly force, you must

then go on to consider whether the defendant justifiably acted in (self-defense / defense of

others).

Each of the reasonable belief requirements of the statute requires you to ask two questions. The

first question you must ask is, did the defendant actually have the belief in question when

(he/she) acted as (he/she) did. The second question you must ask is whether the defendant’s

actual belief was reasonable, in the sense that a reasonable person in the defendant’s

circumstances at the time of (his/her) actions, viewing those circumstances from the defendant’s

point of view, would have shared that belief. A defendant cannot justifiably act on (his/her)

actual belief, if that belief would not have been shared by a reasonable person in (his/her)

circumstances, viewing those circumstances from the defendant’s point of view. Therefore, the

defense of (self-defense / defense of others) has four elements:

Element 1 - Actual belief regarding use of physical force by other person

The first element is that when the defendant used defensive force against <insert name of other

person>, (he/she) actually believed that the other person was using physical force against

(him/her/<insert name of third person>) or that the use of physical force against (him/her) was

imminent. The word “imminent” means that the person is about to use physical force at that time

and not at some unspecified future time.

If you have found that the force used by the defendant was deadly physical force, then you must

find that the defendant actually believed that <insert name of other person> was not only using

or about to use physical force upon (him/her/<insert name of third person>), but that the other

person was either using or about to use deadly physical force against (him/her/<insert name of

third person>), or inflicting or about to inflict great bodily harm upon (him/her/<insert name of

third person>). [“Great bodily harm” is not limited by the definition of serious physical injury

and may encompass other acts such as sexual assault or the threat of sexual assault].4 The term

“great” has its ordinary meaning and indicates a bodily harm that is substantially more than

minor or inconsequential harm.

The act of <insert name of other person> leading to the defendant’s use of defensive physical

force need not be an actual threat or assault. The test is not what the other person actually

intended, but what the other person’s act caused the defendant to believe was the intention of the

other. In other words, the danger to which the defendant was reacting need not have been actual

or real. In judging the danger to (himself/herself/<insert name of third person>), the defendant is

not required to act with infallible judgment. A person acting in (self-defense / the defense of

others) is sometimes required to act instantly and without time to deliberate and investigate.

Under such circumstances it is possible to perceive an actual threat when none in fact existed.

Element 2 - Reasonableness of that belief

The second element is that the defendant’s actual belief about the force being used or about to be

used against (him/her/<insert name of third person>) was a reasonable belief. This means that

under the circumstances of the case, viewing those circumstances from the defendant’s point of

view, the defendant’s actual belief that <insert name of other person> was using or about to use

physical force or deadly physical force against (him/her/<insert name of third person>) was

reasonable because a reasonable person in the defendant’s situation at the time of (his/her)

actions, viewing the circumstances from the defendant’s point of view, would have shared that

belief.

Element 3 - Actual belief regarding degree of force necessary

The third element is that when the defendant used physical force upon <insert name of other

person> for the purpose of defending (himself/herself/<insert name of third person>), (he/she)

actually believed that the degree of force (he/she) used was necessary for that purpose. This

applies whether you have found that the defendant used deadly physical force or not. The

question is whether the defendant believed that it was necessary to use the degree of force that

(he/she) used to defend (himself/herself/<insert name of third person>) from the attack.

Element 4 - Reasonableness of that belief

The fourth element is that the defendant’s actual belief about the degree of force necessary to

defend (himself/herself/<insert name of third person>) was a reasonable belief. This means that

under the circumstances of the case, viewing those circumstances from the defendant’s point of

view, the defendant’s actual belief that the degree of force used was necessary to defend

(himself/herself/<insert name of third person>) was reasonable because a reasonable person in

the defendant’s circumstances at the time of (his/her) actions, viewing those circumstances from

the defendant’s point of view, would have shared that belief.

Exceptions

<Insert any applicable statutory disqualifications. See Exceptions to Justification: Provocation,

Initial Aggressor, Combat by Agreement, Instruction 2.8-2 and Exceptions to Use of Deadly

Physical Force: Duty to Retreat, Surrender Property, Comply with Demand, Instruction 2.8-3.>

The state’s burden

You must remember that the defendant has no burden of proof whatsoever with respect to the

defense of (self-defense / the defense of others). Instead, it is the state that must prove beyond a

reasonable doubt that the defendant did not act in (self-defense / the defense of others) if it is to

prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses

on which you have been instructed]. To meet this burden, the state need not disprove all four of

the elements of (self-defense / the defense of others). Instead, it can defeat the defense of

(self-defense / the defense of others) by disproving any one of the four elements of self-defense

beyond a reasonable doubt to your unanimous satisfaction.

[<If any statutory disqualifications have been included:>

You must also find that the defendant did not act in (self-defense / defense of others), if you find

that the state has proved beyond a reasonable doubt that <insert the statutory disqualifications

upon which the jury has been instructed:>

• Provocation: the defendant provoked <insert name of decedent/complainant> into using

physical force against (him/her).

• Initial aggressor: the defendant was the initial aggressor in the encounter.

• Combat by agreement: the physical encounter between the defendant and <insert name

of other person> was a combat by agreement.

• Duty to retreat: the defendant had a duty to retreat from the physical encounter because

(he/she) knew (he/she) could do so with complete safety.

• Surrender property: the defendant knew that (he/she) would not need to use physical

force against <insert name of other person> if (he/she) surrendered property to <insert

name of other person>.

• Comply with demand: the defendant knew that (he/she) would not need to use physical

force against <insert name of other person> if (he/she) complied with the demand to

<insert name of demand>.]

Conclusion

If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the

elements of a crime to which (self-defense / defense of others) applies, you shall then find the

defendant not guilty and not consider the defense.

If you unanimously find that all the elements of a crime to which (self-defense / defense of

others) applies have been proved beyond a reasonable doubt, you shall then consider the defense

of (self-defense / defense of others). If you unanimously find that the state has disproved beyond

a reasonable doubt at least one of the elements of the defense [or has proved one of the statutory

disqualifications], you must reject that defense and find the defendant guilty.

If, on the other hand, you unanimously find that the state has not disproved beyond a reasonable

doubt at least one of the elements of the defense[, or has not proved one of the statutory

disqualifications], then on the strength of that defense alone you must find the defendant not

guilty despite the fact that you have found the elements of the crime proved beyond a reasonable

doubt.

1 If there is an issue as to whether the degree of force used was non-deadly physical force or

deadly physical force, it should be submitted to the jury. If the parties stipulate to it on the

record you may instruct the jury that “the parties agree that in this case the force used was

deadly.” See State v. Dorans, 261 Conn. 730, 746 n.9 (2002) (sufficient evidence that force used

was deadly to submit question to jury); State v. Whitford, 260 Conn. 610, 631 (2002) (court

properly gave supplemental instruction that jury should determine the level of force, when victim

suffered stab wounds that could have been fatal but were not); State v. Wayne, 60 Conn. App.

761, 765 (2000) (court improperly instructed the jury that the defendant, as a matter of law, had

used deadly physical force by pointing a gun at victim).

2 The model instruction takes the approach of calling each of the inquiries the jury must make

“elements,” analytically similar to the elements of an offense. They may also be labeled “parts”

or “components,” or simply “circumstances under which a person is not justified in using

physical force in self-defense.”

3 There is no statutory definition for “imminent.” The Appellate Court has cited favorably a

dictionary definition, “likely to occur at any moment; impending.” (Emphasis in original.) State

v. Grasso, 189 Conn. App. 186, 220, cert. denied, 331 Conn. 928 (2019). “Consistent with this

definition, which describes an occurrence that is almost immediately at hand, our case law

reflects that [t]he defense of self-defense does not encompass a preemptive strike. . . . The actor

should not be permitted to use force when such force would be equally as effective at a later time

and the actor suffers no harm or risk by waiting. . . . [S]elf-defense depends on a showing that an

aggressor is using or is about to use physical force.” (Citations omitted; internal quotation marks

omitted.) Id., 220-21 (approving, as consistent with the foregoing authority, instruction that

“imminent means that the person is about to use physical force at that time. It does not

encompass the possibility that an act of physical force may take place at some unspecified future

time.”).

4 See State v. Havican, 213 Conn. 593, 600-601 (1990) (concluding that “the threat of great

bodily harm and the threat of serious physical injury are two separate grounds that each justify

the use of deadly force in self-defense”). The bracketed language should only be given in a case

involving a sexual assault.

5 The appellate courts have not addressed the issue of whether the state’s burden of proof on a

claim of self-defense is best expressed in the positive (“the state must prove that the defendant

did not believe . . .”) or the negative (“the state must disprove that the defendant believed . . .”).

Although they have recited portions of trial courts’ charges that have stated the burden of proof

in both ways; see, e.g., State v. Singleton, 97 Conn. App. 679, 693 (2006), rev’d on other

grounds, 292 Conn. 734 (2009); State v. Peters, 40 Conn. App. 805, 817 (1996); such recitation

carries no “precedential imprimatur” with regard to the propriety or impropriety of either

approach. See State v. Romero, 269 Conn. 481, 490 (2004).

6 See State v. Terwilliger, 294 Conn. 399, 417-18 (2009) (advisable to instruct the jury on the

consequences of the state’s failure to meet its burden as it may enhance the jury’s understanding

of the defense).