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USE OF FORCE UPON AN INTRUDER model jury charge 2c:3-4

JUSTIFICATIONUSE OF FORCE UPON AN INTRUDER model jury charge(N.J.S.A. 2C:3-4c)

The indictment charges that the defendant has committed the crime of .

The defendant contends that his/her use of force (or deadly force) upon was justifiable under the circumstances for his/her self-protection (or the protection of others).

Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.

Keep in mind that the State has the burden to prove to you, beyond a reasonable doubt that the force used by the defendant against another person was not justified.[1]

If the State fails to sustain this burden, the defendant must be found not guilty of the crime(s) charged. Conversely, this defense should be rejected if the State disproves, beyond a reasonable doubt, any of the elements or conditions which constitute justification.

In this case (recite factual contentions which raise the issue of justification).

For the force used by the defendant against another to be justified, the following two conditions must exist:

1. The other person (victim) was an intruder who was unlawfully in a dwelling.

An intruder is one who is unlawfully in the dwelling--that is, he/she was not licensed or privileged to be in the dwelling. The term dwelling means any building or structure, though movable or temporary, or a portion thereof, which is used as a persons home or place of lodging.[2]

2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.

A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

I instruct you that a reasonable belief is different than an honest belief. What is reasonable is not measured by what a defendant found reasonable but rather by what a jury finds reasonable. Thus, the reasonableness of defendants belief is based on an objective standard--that is, by how an ordinary reasonable person with a detached viewpoint would view it. A subjective belief, based on the viewpoint of the defendant, is immaterial.

If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action.

The State has a burden of proving, beyond a reasonable doubt, that the force used by the defendant against another person was not justified, that is, the State has the burden of proving, beyond a reasonable doubt, that any of the elements or conditions of justification do not exist.

If you find that the State has met its burden of proof beyond a reasonable doubt, there is no justification and you will consider whether the State has otherwise sustained its burden of proving, beyond a reasonable doubt, each and every element of the offense of .

If the State has not met its burden in this regard on the issue of justification, the defendant must be found not guilty as to the charge of .[3]



[1] Although the burden of disproving this defense is upon the State, there must be enough evidence to support this charge--the record must provide a rational basis upon which the jury could find that the defendant acted justifiably. See State v. Martinez, 229 N.J. Super. 593 (App. Div. 1989).

[2] A dwelling includes a porch or other similar appurtenance. State v. Martinez, 229 N.J. Super. 583, 604 (App. Div. 1989).

[3] Note: If the State has sustained its burden of proof, the jury may, if the facts so warrant, deal with the issue of imperfect self-defense. See State v. Bowens (Leon), 108 N.J. 622, 627-630 (1987).


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