November 29, 2021
Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley reviews the recent verdict in the Kyle Rittenhouse trial and explains how the decision may have panned out differently if it took place in Missouri.
The article, How Far Can a Claim of Self-defense Extend?, was published in the November 26 edition of The Examiner. An excerpt from the article is below.
As if the country needs any further division, the verdict in Kenosha, Wisconsin acquitting young Kyle Rittenhouse of murder charges has caused more conflict. His attorney, Mark Richards, was interviewed by CNN after the verdict and explained calmly and eloquently that he used the self-defense law of Wisconsin to defend his client and he thought that the proper verdict had been rendered.
After reviewing the jury instructions in that case and researching the law of self-defense I understood how the jury reached its decision. I question the wisdom of a 17-year-old leaving his home in Illinois to go to Kenosha armed with a semi-automatic assault rifle, but once there, when confronted with the three men he shot, the verdict made more sense under the self-defense law of Wisconsin. Having researched Missouri’s self-defense laws and jury instructions, I am not sure a similar verdict would have been rendered in Missouri. I have never handled a criminal case in my 41-year career, and thus I am writing from the perspective of a civil trial lawyer.
Self-defense is a “special negative” defense in both states in which the defendant has the burden of injecting into evidence the issue of self-defense and if permitted by the trial judge, but the prosecutor continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. In Missouri, the judge must determine as a threshold to use of self-defense; there must be substantial evidence to support its submission, and the trial judge makes that decision.
In Missouri, to submit a self-defense instruction to the jury, the court must first find substantial evidence of four things:
1. The defendant did not provoke or was not the initial aggressor.
2. The defendant had reasonable grounds for believing he was faced with immediate danger of serious bodily harm.
3. The defendant did not use more force than necessary.
4. The defendant did everything in his power and consistent with his own safety to avoid the danger.
The use of deadly force is justified only when the defendant reasonably believes deadly force is necessary to protect himself or another from immediate danger of death or serious bodily harm. The jury instruction defines initial aggressor as one who first attacks or threatens to attack another. If there is disputed evidence as to who is the initial aggressor, the jury decides that fact. Furthermore, if you are the initial aggressor you must withdraw from the original encounter and clearly indicate to the other person a desire to end the encounter to then use physical force in lawful self-defense.