Have you been accused of a crime of violence, such as assault? Do you believe that the actions you are accused of were justified, and in defense of yourself or someone else? If so, you might have a legitimate self-defense claim that could result in avoiding a conviction. Experienced assault lawyers can answer the question: “When might Assault Lawyers Use Self-Defense as a Defense Strategy?”
Criminal Law Basics – Affirmative Defenses
Self-defense is what is referred to as an “affirmative defense.” An affirmative defense is one in which you admit that you did, indeed, engage in the conduct at issue; however, you had a legally justifiable reason for doing so. Take, for example, the offense of assault. In the State of Nebraska, you commit assault in third degree if you “Intentionally, knowingly, or recklessly causes bodily injury to another person.” If you claim the affirmative defense of self-defense, you are effectively saying that you did “Intentionally, knowingly, or recklessly causes bodily injury to another person” BUT you had a good reason for doing so that the law also finds acceptable. When you assert an affirmative defense, it also shifts the burden of proof. When the State charges you with a crime, the State bears the burden of proving you committed that crime. Asserting an affirmative defense, however, shifts the burden back to you to prove that defense.
Nebraska Self-Defense Statute
In Nebraska, Nebraska Revised Statute Section 28-1409 governs the use of self-defense, stating, in pertinent part, as follows:
“the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
What Does the Statute Mean?
You may be able to use self-defense as a defense if you can prove that you believed that you would be subjected to force or violence, and you committed an act of violence out of necessity to protect yourself. You must feel threatened at the moment. For instance, if someone hits you, but then stops, and indicates that the threat is over, then hitting back would not be legally justifiable self-defense. Specifically, you must have a reasonable and good faith belief that what you were doing was necessary, and the force used must be justified under the circumstances. It is not enough that someone said words you found offensive, although a credible threat could be enough to justify protecting yourself. For instance, if someone verbally threatens to harm you or someone else, self-defense might me warranted if the threat is found to be immediate and real. You are not necessarily required to wait until there is actual violence; however, words you find offensive are not enough.
Are There Any Limits to Self-Defense as a Defense?
There are, of course, limits to the use of self-defense as a viable defense strategy. First and foremost, courts have long agreed that the defense used should be equal to the situation. For example, it would be unreasonable to shoot someone who threatened to slap you. The courts have found that, when self-defense is used, it must be “proportionate, and reasonable considering the situation.”
In addition, although other states allow the use of self-defense in defense of property, in the State of Nebraska you cannot use self-defense to defend property nor can you claim self-defense when the other person is occupying or possessing property. Moreover, if a police officer is arresting you, there is no self-defense claim, even if the arrest is not lawful. Finally, you cannot claim self-defense if you are the one who provoked the other person.
What about Deadly Force as Self-Defense?
You can only use deadly force to protect yourself if you believed that you were protecting yourself or someone else from death, serious injury, rape, or kidnapping. Again, you cannot be the one who provoked the violence. Also, you cannot claim self-defense if you have the possibility of avoiding it by retreating, or by giving up something or stopping an action which will defuse the situation. You are not, however, required to leave your own home or place of work in order to avoid the confrontation.
How Do Assault Lawyer Present a Self-Defense Claim at Trial?
In Nebraska, trial courts are required to instruct the jury on self-defense if sufficient evidence was presented at trial to support self-defense as an affirmative defense. In theory, asserting a claim of self-defense does not negate your right to remain silent; however, as a practical matter you will likely need to testify if your defense strategy is based on a claim of self-defense. Self-defense is an absolute defense, meaning if you prevail on your assertion of self-defense, you avoid a conviction.
Contact Us
If you have been charged with a violent criminal offense in the State of Nebraska it is certainly in your best interest to consult with an experienced Nebraska assault lawyer right away to discuss what defenses might be available to you. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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