And one of the most important elements of any self-defense case is the ability of the defendant to convince the jury that he/she was a “faultless victim.” You were an “unwilling actor,” a “reluctant participant,” an innocent who didn’t create, or escalate, the circumstances that led to your having to defend yourself.
Note that this particular requirement is not always expressed in actual statutes, but is rather a long accepted principle of what is frequently referred to as “common law”—a term loosely defined as, “law
based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute.”
As in all law, what those words mean will depend on how they are interpreted by the jury empaneled on that day. But obviously, if you initiated the confrontation (i.e. road rage or some other provocation) which
eventually escalated into a deadly force scenario, you will have a difficult time claiming self-defense.
Note that “the other guy started it” is no defense. Even if you didn't initiate the incident, your obligation to “avoid the danger” doesn't end there. The jury wants to see someone who attempted to disengage, throughout the event, and only resorted to deadly force when no other avenue was available.
Here is a perfect example of what not to do. A man pulls into his driveway after work, and noticed four young men loitering in the street in front of his house, cursing loudly. He had two young children in
the house, so he asked them to “please tone it down.
He went inside, and after seeing several more young males arrive, he called police, voicing his concerns. Good move. But when he saw the group double in size, he panicked. Instead of waiting for police, he
grabbed a rifle, walked out the front door and stood on the front steps, cradling the gun in his arms, telling the youths, “You’d better leave; the cops are on the way.”
Bad move. When police arrived, they drew their guns, screaming at the homeowner to “Get on the ground!” Why? Because the moment he walked out that door, he became the “armed aggressor.”
Now, having no criminal record, the homeowner could be offered a deal to plead guilty to simple misdemeanor assault. But that is hardly comforting. A firearms-related conviction, even a misdemeanor, could haunt him forever, perhaps even destroying his career.
So, even if you didn't provoke the initial confrontation, do everything possible to continue being seen as the faultless victim.
This post is not intended to replace the advice of an attorney, please consult an attorney before using any information contained in this post.