Smith Guts Self-Defense Bill

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Smith Guts Self-Defense Bill

by Ari Armstrong, January 23, 2003

Rep. Matt Smith (R-Grand Junction) gutted bill 1148 January 21 in the House Judiciary. The bill as offered would protect the right of defendants to use self-defense as an affirmative defense in front of a jury and let the jury see an instruction pertaining to the affirmative defense. Smith offered two amendments to the bill striking the phrase "affirmative defense" from it and deleting language that applied the affirmative defense to all types of charges.

Republican Joe Stengel joined the Democrats in the committee in support of Smith's amendments. The gutted bill then passed out of committee along party lines. The bill's supporters hope Smith's amendments can be removed later in the process.

The problem with the current system, the bill's supporters say, is that it gives prosecutors the power to preclude the use of self-defense as an affirmative defense simply by the choice of charges.

For example, if the prosecution charges a person with second-degree murder, the judge instructs the jury to find whether "the defendant... knowingly caused the death of another person, without the affirmative defense [of self-defense]." The jury is further instructed to decide if the prosecution "has proven each of the elements beyond a reasonable doubt," including the element that the defendant is "without the affirmative defense" of self-defense.

The problem is that if the prosecution decides to charge a person with reckless manslaughter or negligent murder, rather than intentional first-degree murder or second-degree murder, the defendant may no longer use self-defense as an affirmative defense. While jury instructions for such charges mention self-defense, they do not list it as an affirmative defense, which lowers the burden of proof for the prosecution where the defendant has presented evidence of self-defense.

This ability of prosecutors to impact the defense merely by bringing different charges gives prosecutors an unfair advantage. Prosecutors can bring multiple charges for the same offense, thereby excluding self-defense as an affirmative defense for some of the charges. The inequitable rules also give prosecutors more power to force a plea bargain. A defendant may not use self-defense as an affirmative defense in cases of reckless homicide; he or she may only do so for a higher-level charge. Thus, the defendant is faced with a choice of arguing self-defense for a more-serious charge, or not being able to use self-defense as an affirmative defense for a less-serious charge. This is the perfect system for making the prosecutor's job easier -- at the expense of a fair trial.

Article II, Section 3 of the Colorado Constitution states, "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties..." Statute 18-1-704 states "a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person..." And 18-1-710 states, "The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses." (The other sections deal with matters like public duty, emergencies, preventing suicide, and duress.)

What's the problem, then? This language doesn't seem to admit the exceptions currently made. But the courts have nevertheless created exceptions. A 1978 case (People v. Fink) states, "[W]hen an element of the crime charged is that the defendant acted in a reckless or criminally negligent manner... no error results from the court's failure to give a self-defense instruction." This case is cited in the 1998 case People v. Roberts, which adds, "[B]ecause self-defense presupposes that the defendant acted intentionally and knowingly, it can only be an affirmative defense to murder." The decision further suggests the only alternative to a charge of recklessness or negligence is a finding of an accident.

It is the Roberts case that Smith cited January 22 in defense of his amendments. Smith said 1148, as originally offered, would have created a "conflict" in the law because an affirmative defense of self-defense necessarily conflicts with the charge of recklessness or negligence. In other words, self-defense is inherently a reasonable act, whereas a reckless or negligent act is inherently unreasonable.

But Smith's Alice-In-Wonderland argument amounts to saying the defendant cannot argue self-defense because the charge implies otherwise. He might as well argue the law "conflicts" because a plea of innocence flatly contradicts a criminal charge. A prosecutor should not be able to preclude self-defense as an affirmative defense simply by the choice of charges. To assume the charge precludes the defense is simply to beg the question. The entire point of criminal law is to give the defendant the opportunity to "conflict" with the charges.

Smith did say, "I don't want to have the prosecution in control... of the defense that is raised." He added, "I am moved that the defendant is not getting a fair shake based on the presentation of the evidence." He said some sort of extra jury rule may be appropriate, and he said he will work with Rep. Mark Cloer, the bill's sponsor, to develop such a rule. However, I do not see why Smith thinks some rule other than what is proposed in the original bill is necessary. (Perhaps Smith will care to reply to this article.)

1148 is as simple a bill as they come. Originally, it stated, "It is the intent of the General Assembly that a person shall be entitled to raise self-defense as an affirmative defense, regardless of the mens rea [state of mind] which is an element of the charged crime." The line about "mens rea" is necessary to get across the point the prosecution cannot just arbitrarily claim "reckless" or "negligent" in order to preclude the affirmative defense of self-defense. The bill, as originally written, goes on to say, "A person shall be entitled to an affirmative defense jury instruction in a criminal case when there is evidence before the court, however slight, of self-defense." The phrase "however slight" was eliminated by another amendment, and its exclusion is no big deal.

What 1148 will do -- if it is restored to its original language -- is make sure a jury considers evidence for self-defense as an affirmative defense. There does have to be evidence of self-defense -- otherwise the judge doesn't have to consider it. The bill stops prosecutors from toying with charges to manipulate the defense.

I'm shocked the Democrats, who are allegedly concerned with civil rights, voted against the bill in committee. I'm also surprised Smith gutted it. Hopefully he will demonstrate his stated sympathy for the rights of the accused by reversing his amendments on the floor.


[2/12/03 Update: See http://www.freecolorado.com/2003/02/legupdate12.html.]

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