When someone is attacked and forced to defend themselves it isn’t always presumed that they are the innocent party. The trial argument of self-defense relies upon the accused being the innocent party.
What does it mean to be the innocent party? It means that you did not start or escalate the attack. For example, if someone makes a verbal threat you are the innocent party. If you respond to that verbal threat by some form of physical contact such as striking or shoving the person, you have escalated the attack and lost your status of innocent party. That seems simple enough. However, the prosecutor looks at more than the actual event. If there is a pattern of verbal confrontations between you and your attacker, no matter how far in the past, you may not be perceived as the innocent party. The prosecutor may get the jury to believe you were the instigator just looking for your opportunity to strike out. If you are party to a conflict, you know, the let’s take this outside invitation, you are not an innocent party. Rather you are a mutual combatant. Your status changes if you clearly withdraw from the conflict and the other party continues the attack. At that point you become the innocent party. Once again, this puts you in a risky territory since your status is dependent upon what the jury believes. In The Law of Self Devenses Principles, Andrew Branca offers a nuanced example where a person comes out of the darkness violently charging towards another person. The intended victim attempts a punch that misses but trips the attacker. The attacker jumps up and charges again. The intended victim connected with a glancing blow after the attacker threw a punch that missed. The intended victim delivers a knee to the groin, ending the attack. Who is the innocent party in this exchange? It may seem obvious on the surface. The man who charged out of the darkness was the aggressor, right? But, who was punched first? The prosecutor could very well present the presumed attacker on the stand. He can claim he is the innocent victim that was merely defending himself against an attacker that punched him before kneeing him in the groin. The jury will be told that the only person who made contact was the one accused unfairly. The future looks bleak for the guy who was just walking down the street. A good defense attorney will present a different picture. Since the guy charging out of the darkness was the aggressor, he cannot claim self-defense. There is another aspect to this type of scenario. In the above scenario the aggressor and defender are using the same amount of force. Remember you can lose the ability to claim self-defense if you are not the innocent party or escalate the conflict. If, in the scenario above, the defender presented a weapon in response to the charging attacker that could risk his innocent party status. I say could because there are other factors. If there is a disparity of force a defender may use a greater degree of response than being presented by the attacker. An example might be an elderly woman who uses a firearm to defend herself against multiple young attackers who have not presented a weapon. There is a disparity of force in the younger, multiple attackers. She does not lose her innocent party status. Escalating responses can flip the innocent party status back and forth. Who the innocent part is at any given moment can be complicated. Some areas may consider your language to indicate aggressive behavior and negate the innocent party status. My best advice is to be careful what you say to everyone, avoid conflict where ever possible and rely on sound legal counsel.
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I am an Air Force Combat Veteran, Certified by the NRA and USCCA as well as the state of Utah. Archives
January 2024
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