Joette Katz Authors Law.com Article Entitled "Re-examining Claims of Self-Defense"

Our law doesn't always keep pace with teachings from science, psychology, brain development, or mental health. But when it finally catches up, it is indeed newsworthy. For example, it was in 2012, when in State v. Guilbert, fueled by the Identification Task Force chaired by Justice Borden, and in recognition of the developments in the cognitive science of eyewitness identification, the Supreme Court established new rules for cases in which eyewitness identification evidence is proffered. ("[E]xpert testimony on eyewitness identification is admissible upon a determination by the trial court that the expert is qualified, and the proffered testimony is relevant and will aid the jury.")

Indeed, I was delighted to see the court overrule earlier decisions (State v. Kemp and State v. McClenden), which held that the factors affecting eyewitness identification were within the knowledge of an average juror. (As a public defender, I had toiled for years under the tutelage of Dr. Elizabeth Loftus, losing countless cases trying to refute that principle.) The Guilbert Supreme Court reasoned that its prior jurisprudence was out of step with the extensive and comprehensive scientific research demonstrating the fallibility of eyewitness identification testimony.

Then later, in State v, Dickson, the court further developed protections against inherently suggestive identifications, concluding that "any [first-time] in-court identification by a witness who would have been unable to reliably identify the [petitioner] in a nonsuggestive out-of-court procedure constitutes a procedural due process violation."

This is not the only example of law following science into the criminal courtroom; see e.g. State v. Belcher (under the federal constitution's prohibition on cruel and unusual punishments, a juvenile offender cannot serve a sentence of imprisonment for life, or its functional equivalent, without the possibility of parole, unless his age and the hallmarks of adolescence have been considered as mitigating factors); or the legislature (see Public Act 15-84) … [which] retroactively provided parole eligibility to juvenile offenders sentenced to more than 10 years in prison.

Maybe it's time for our courts to consider a more expansive definition of self-defense that does not preclude self-defense arguments for planned killings, for instance. Wait-before you say: "Justice Katz has lost her mind", hear me out. Years of abuse by a partner (I've heard it labelled "murder by installment") may inform what is a reasonable response. And what the "ordinary man" would do in the position of a battered spouse, may require a more nuanced look as to what is reasonable, especially when the circumstances are, by and large, foreign to the world inhabited by the hypothetical reasonable man.

In Connecticut, it is well settled that under C.G.S. sec. 53a-19 (a), "a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such attack." A jury must apply in analyzing the second requirement a subjective-objective test. It must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that deadly physical force, as opposed to some lesser degree of force, was needed in order to repel the victim's alleged attack.

Then, if the jury determines that the defendant in fact had believed that the use of deadly force was necessary, it must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant's circumstances. Therefore, if a jury determines that the defendant's honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of the defense. See State v. Hughes for a more comprehensive discussion.

But all this action and debate revolve around the second prong of the statute. There is no heavy lift when it comes to assessing the first part: whether the defendant believed that his attacker is using or about to use deadly physical force. The traditional formulation and interpretations of this requirement mean that self-defense pleas are likely to be unsuccessful in many situations.

A society's penal code functions in part as an expression of its values — as one avenue through which we say: this act deserves punishment, this one mercy. I am not suggesting that we simply give a free pass to battered women who kill, or that the Menendez brothers necessarily deserved to be acquitted based on evidence, much of it ruled inadmissible in their second trial, of the sexual assault the boys suffered for years at the hands of their father. But we must also acknowledge that there are people whose lives remain bound to violence or threats of violence that they cannot be expected to simply walk away from on their own.

We have made this allowance when we acquit men like Kyle Rittenhouse; but when a woman or youth regardless of gender has been beaten, sexually assaulted repeatedly, threatened with murder, or had her children physically threatened, we struggle with how to respond. We know that a claim of self-defense is likely to be unsuccessful if the woman killed her batterer during a lull in the beatings, when he was asleep, or his back was turned. This is because they cannot show that they were faced with an imminent threat of death or serious bodily harm at the moment they struck.

Self-defense laws require another look. We ask judges and juries to place themselves in someone else's shoes and consider: What can we ask of a person in this situation? This means that we may need to change our focus, to see the world through the eyes of someone whose perceptions have been shaped by years, sometimes a lifetime, of brutality. We've done a great deal with regard to access to services and shelters. But despite all we know today about intimate partner violence, the trauma of child abuse, the world of sex trafficking, and despite the willingness of so many victims to share their stories, we have been rigid when it comes to the issue of timing. We need to examine whether our laws also need to respond, and I suggest, not just to accommodate through reduced charges like manslaughter to a murder indictment or through an insanity defense.

Currently, in order to claim self-defense, the accused still must provide evidence that the actions were reasonable, given the violence or threat of violence faced, but the idea of reasonableness should be assessed not solely based upon the parties' relative sizes and strengths and what was happening in the precise moment of the homicide. A history of abuse of the partner and threats to her children, the nature of the relationship and other contextual factors, including personal history of a traumatic past, should be considered as context for her state of mind at the time of her crime as part of a claim of self-defense.

Often the real barriers facing a battered woman trying to escape contribute to the helplessness she experiences and can explain why she can't leave. The likelihood of increased violence when she attempts to leave, along with the financial hardship she will likely experience when leaving all make escape difficult and dangerous. The facts inform her belief that she is helpless to control the violence, stop it or successfully flee, and are part of the state of mind that is critical to the defense. But when the force or threat by the abuser is not immediate, she is deprived of the true defense.

I do not suggest that a battered woman may not suffer from some form of mental disorder as a result of the continual violence such that an insanity defense or some form of mitigating psychiatric defense such as extreme emotional disturbance is not appropriate. I am simply saying that these should not be the only considerations. The facts contributing to a belief by the woman that she is helpless to control the violence, stop it or successfully flee may not be the products of defective or delusional thinking.

I recognize that this issue is far more complicated and deserves much research, study, and to learn from those with true expertise than this editorial permits. I'm just trying to start a conversation, one I began to think about when writing State v. Borrelli in 1993. Whether a defense attorney takes up the mantle, a task force is created, or a rules committee is charged, law needs to keep pace with science and reality.

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/10/29/re-examining-claims-of-self-defense/], reprinted by permission.