5.10 Self–Defense

            The defendant has offered evidence of having acted in self-defense.  Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force.  However, a person must use no more force than appears reasonably necessary under the circumstances.

            Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.

            The government must prove beyond a reasonable doubt, with all of you agreeing, that the defendant did not act in reasonable self-defense.

Comment

            The Ninth Circuit has found that the first two paragraphs of this instruction adequately inform the jury of defendant’s defense where “[t]he court also instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the defendant had not acted in reasonable self-defense.”  United States v. Keiser, 57 F.3d 847, 850-52 (9th Cir. 1995).  See also United States v. Morsette, 622 F.3d 1200, 1202 (9th Cir. 2010) (“[t]he model jury instruction remains correct”).

            Failure of the trial court to instruct the jury that the government has the burden of disproving self-defense is reversible error.  United States v. Pierre, 254 F.3d 872, 876 (9th Cir. 2001).  When there is evidence of self-defense, an additional element should be added to the instruction on the substantive offense:  for example, “Fourth, the defendant did not act in reasonable self-defense.”

            A defendant is entitled to a self-defense instruction when “there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent or of doubtful credibility.” United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998) (quotation marks and citation omitted); United States v. Ehmer, 87 F.4th 1073, 1131 (9th Cir. 2023) (holding that defendant is not entitled to a self-defense instruction unless confronted with an immediate use of force, even if it was “reasonable” to believe that defendant faced an in-the-future “immediate use of unlawful force”).

            The jury must unanimously reject the defendant’s self-defense theory to find the defendant guilty.  United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir. 2008).

            This instruction is not appropriate when the defendant is charged with violating the Endangered Species Act.  See United States v. Wallen, 874 F.3d 620, 628-29 (9th Cir. 2017) (holding that it was error to apply standard self-defense instruction to defense based on defendant’s ‘good faith belief’”); see also United States v. Charette, 893 F.3d 1169, 1175-76 (9th Cir. 2018) (same). 

            See also Comment to Instruction 3.5 (Character of Victim) for a discussion of the admissibility of the victim’s character where self-defense is claimed.

            For self-defense claims involving excessive force, see United States v. Ornelas, 906 F.3d 1138, 1147-48 (9th Cir. 2018). 

Revised March 2024