If you have been charged with committing a criminal offense involving the use of force against another person in the State of Nebraska, and you believe your actions were justified, you may be able to claim that your actions constituted the affirmative defense of self-defense. The legal concept of self-defense is something that is often portrayed inaccurately in movies and in books. Consequently, most people only have a vague idea of what actions qualify as self-defense and when self-defense can be used as a defense in a criminal prosecution. Because the viability of the use of self-defense as a legal defense is based on the unique set of facts and circumstances of the case, it is imperative that you consult with an experienced Nebraska criminal defense attorney to discuss your specific case. To give you a broad understanding of the concept of self-defense as a legal defense, however, an Omaha defense attorney explains some self-defense basics.
What Is an Affirmative Defense?
In the United States criminal justice system, an accused is presumed innocent until proven guilty beyond a reasonable doubt. This is one of the basic tenets of the criminal justice system. As such, the burden is on the State, through the prosecuting attorney, to prove a defendant guilty. This means that a defendant is not required to prove anything in a criminal prosecution. There is one exception to the general rule placing the burden on the prosecuting attorney in a criminal prosecution. If the defendant claims an affirmative defense, that effectively shifts the burden to the defendant to prove that affirmative defense. An affirmative defense asserts that you did engage in the conduct alleged in the statute; however, you were legally justified in doing so. In the case of the affirmative defense of self-defense, you are admitting that you engaged in an act of violence against the alleged victim; however, you were legally justified in using that violence based on your claim of self-defense.
What Constitutes Self-Defense in Nebraska?
Each individual state has its own definition of self-defense. 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.”
Nebraska also allows the use of force to protect another person when the other person would be justified using force under the above statute and you believe the use of force is necessary to protect the person.
The use of deadly force in Nebraska is also allowable if you believe you are protecting yourself or someone else from death, serious injury, rape, or kidnapping. Deadly force cannot be used, however, if you have the option to retreat to avoid the situation. In addition, anytime self-defense is used the amount of force used must be proportionate and reasonable. For example, if someone pushes you, and does nothing else, you probably cannot claim self-defense if you then stabbed the person 10 times. Interestingly though, a credible threat can be sufficient to justify the use of force. Someone using offensive words won’t suffice to sustain a claim of self-defense when force is used; however, if those words constitute a threat, and you believed the threat to be immediate, credible, and serious, you might be justified in the use of force to prevent the threat from being carried out.
As you can see, the use of force, and the subsequent claim of self-defense, are all extremely fact specific. Numerous factors will be considered when deciding whether the use of force was justified based on the affirmative defense of self-defense. If you believe that your use of force was justified, however, you owe it to yourself to discuss self-defense as a possible defense with an experienced Omaha defense attorney.
Contact an Omaha Defense Attorney at Petersen Law Office
If you have been charged with a crime involving the use of force, and you believe that force was justified on the basis of a claim of self-defense, consult with an experienced Omaha defense attorney. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
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