5.9 Justification (Legal Excuse)

            The defendant contends that [his] [her] conduct was justified.  Justification legally excuses the crime charged.

            The defendant must prove justification by a preponderance of the evidence.  A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of [specify crime charged].

            A defendant’s conduct was justified only if at the time of the crime charged:

First, the defendant was under an unlawful and present threat of death or serious bodily injury;

Second, the defendant did not recklessly place [himself] [herself] in a situation where [he] [she] would be forced to engage in criminal conduct;

Third, the defendant had no reasonable legal alternative; and 

Fourth, there was a direct causal relationship between the conduct and avoiding the threatened harm.

            If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

Comment

            In United States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996), the Ninth Circuit set forth the four elements needed to make out a justification defense.  See also United States v. Wofford, 122 F.3d 787, 790 (9th Cir. 1997); United States v. Beasley, 346 F.3d 930, 933 n.2 (9th Cir. 2003).

            In Gomez, 92 F.3d at 778, the Ninth Circuit held that the defendant presented evidence that, if believed, would have supported a justification defense (specifically, evidence that defendant, convicted felon, had armed himself with shotgun after receiving several death threats resulting from the government’s identification of him as informant).  

Revised Sept. 2018