Haw. Pattern Jury Instr. (Criminal) 7.01A

Issue.

Self-defense is a defense to the charge(s) of (specify

charge and its included offenses). Self-defense involves

consideration of two issues. First, you must determine whether

the defendant did or did not use “deadly force.” Second, you

must determine whether the force used was justified. The burden

is on the prosecution to prove beyond a reasonable doubt that

the force used by the defendant was not justified. If the

prosecution does not meet its burden, then you must find the

defendant not guilty.

The first issue is: Did the defendant use “deadly force?”

“Deadly Force” means force which the defendant uses with

the intent of causing, or which he/she knows to create a

substantial risk of causing, death or serious bodily injury.

“Force” means any bodily impact, restraint, or confinement,

or the threat thereof.

[Serious bodily injury means bodily injury which creates a

substantial risk of death or which causes serious permanent

disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.]

[Intentionally firing a firearm in the direction of another

person or in the direction which the person is believed to be

constitutes deadly force.]

[A threat to cause death or serious bodily injury, by the

production of a weapon or otherwise, so long as the actor’s

intent is limited to creating an apprehension that he/she will

use deadly force if necessary, does not constitute deadly

force.]

If you determine that the defendant used “deadly force,”

then you are to proceed to the section in this instruction

entitled “Deadly Force Used.” If you determine that the

defendant did not use “deadly force,” then you are to proceed to

the section in this instruction entitled “Deadly Force Not

Used.” You must then follow the law in the applicable section

to determine the second issue, which is whether the force used

by the defendant was justified.

“Deadly Force” Used

The use of deadly force upon or toward another person is

justified if the defendant reasonably believes that deadly force

is immediately necessary to protect himself/herself on the

present occasion against [death] [serious bodily injury]

[kidnapping] [rape] [forcible sodomy]. The reasonableness of

the defendant’s belief that the use of protective deadly force

was immediately necessary shall be determined from the viewpoint

of a reasonable person in the defendant’s position under the

circumstances of which the defendant was aware or as the

defendant reasonably believed them to be when the deadly force

was used.

[The use of deadly force is not justifiable if the

defendant, with the intent of causing death or serious bodily

injury, provoked the use of force against himself/herself in the

same encounter.]

[The use of deadly force is not justifiable if the

defendant knows that he/she can avoid the necessity of using

such force with complete safety by retreating, but the defendant

is not required to retreat from his/her own dwelling unless

he/she was the initial aggressor. “Dwelling” means any building

or structure, though movable or temporary, or a portion thereof,

which is for the time being a home or place of lodging.]

[The use of deadly force is not justifiable if the

defendant knows that he/she can avoid the necessity of using

such force with complete safety by retreating, but the defendant

is not required to retreat from his/her place of work unless

he/she was the initial aggressor or is assailed in his/her place

of work by another person whose place of work the defendant

knows it to be.]

[The use of deadly force is not justifiable if the

defendant knows that he can avoid the necessity of using such

force with complete safety by [surrendering possession of a

thing to a person asserting a claim of right thereto] [complying

with a demand that he abstain from any action which he has no

duty to take], but when the defendant [is a public officer

justified in using force in the performance of his/her duties,

or is a person justified in using force in assistance of that

public officer] [is a person justified in making an arrest or

preventing an escape], the defendant is not obliged to desist

from efforts to [perform the duty] [effect the arrest or prevent

the escape], because of resistance or threatened resistance by

or on behalf of the person against whom the action is directed.]

“Deadly Force” Not Used

The use of force upon or toward another person is justified

if the defendant reasonably believes that force is immediately

necessary to protect himself/herself on the present occasion

against the use of unlawful force by the other person. The

reasonableness of the defendant’s belief that the use of

protective force was immediately necessary shall be determined

from the viewpoint of a reasonable person in the defendant’s

position under the circumstances of which the defendant was

aware or as the defendant reasonably believed them to be. The

defendant may estimate the necessity for the use of force under

the circumstances as he/she reasonably believes them to be when

the force is used, without [retreating] [surrendering

possession] [doing any other act that he/she has no legal duty

to do] [abstaining from any lawful action].

[The use of force is not justifiable to resist an arrest

which the defendant knows is being made by a law enforcement

officer, even if the arrest is unlawful, but is justifiable if

the officer threatens to use or uses unlawful force.]

[The use of force is not justifiable to resist force used

by the occupier or possessor of property or by another person on

his/her behalf, where the defendant knows that the person using

the force is doing so under a claim of right to protect the

property, but is justifiable if the defendant [is a public

officer acting in the performance of his duties or a person

lawfully assisting the officer therein] [is a person making or

assisting in a lawful arrest] [reasonably believes that force is

necessary to protect himself/herself against death or serious

bodily injury.]

[The use of confinement as force is justifiable only if the

defendant takes all reasonable measures to terminate the

confinement as soon as he/she knows that he/she safely can,

unless the person confined has been arrested on a charge of

crime.]

“Force” means any bodily impact, restraint, or confinement,

or the threat thereof.

“Unlawful force” means force which is used without the

consent of the person against whom it is directed and the use of

which would constitute an unjustifiable use of deadly force or

force. A person cannot consent to the infliction of death,

serious bodily injury, or substantial bodily injury.

“Serious bodily injury” means bodily injury which creates a

substantial risk of death or which causes serious permanent

disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.

“Substantial bodily injury” means bodily injury which

causes: [A major avulsion, laceration, or penetration of the

skin]; [a burn of at least second degree severity]; [a bone

fracture]; [a serious concussion]; [or a tearing, rupture, or

corrosive damage to the esophagus, viscera, or other internal

organs].

“Bodily injury” means physical pain, illness, or any

impairment of physical condition.

[Self-defense is not available for the offense(s) of

(specify any offense in which the requisite state of mind is

either recklessness or negligence) if the prosecution proves

that:

(1) the defendant was reckless in believing that he/she

was justified in using deadly force or force against the other

person; or

(2) the defendant was reckless in acquiring or failing to

acquire any knowledge or belief which was material to the

justifiability of his/her use of deadly force or force against

the other person.]