The Use of Force in Self-Defense

The use of force in self-defense is known in the law as “justification”. The “black letter” law is found in Penal Law §35.15 (http://codes.lp.findlaw.com/nycode/PEN/ONE/C/35/35.15).
The cases interpreting this law are legion.

Justification is often misunderstood, even among attorneys and judges. The dynamics of violent encounters have practical complexities most legal professionals are not trained to spot and have never lived through. Couple this with the fact that we have be lied to all our lives by TV, movies, books and the WWE about what violence looks like, and there can be real problems educating the jury and judge.

I will be writing my next few blogs on different aspects of this area of law, inspired in part by a recent decision from the NY State Supreme Court’s Appellate Division (3d Department) which overturned convictions for Attempted Murder 2nd and Assault 1st.

Here is the link to People v. Lydia Salce:
http://decisions.courts.state.ny.us/ad3/decisions/2015/105516-106349.pdf
The last two pages of the decision are relevant to this discussion.

My hat is off to Drew Blumenberg of the Saratoga County Public Defender’s office for doing such a fine job. He won his client a new trial at which the defense will be able to use the expert witness they should have been allowed to present the first time. Salce was overturned in part because the trial judge refused to allow the defense to present relevant expert witness testimony. Police testifying for the prosecution were allowed to tell the jury how they interpreted the wounds of the injured party to corroborate his version that he was a victim of a violent crime, but Ms. Salce was denied her chance to have an expert give a different view.

The defense wanted to use an expert to explain how the wounds were not inconsistent with defensive actions by Ms. Salce, but the trial court wouldn’t allow it. I had recommended the defense expert, Massad Ayoob, to the Public Defender. Massad was a police officer for 30 years. He is a renowned authority & author on the subject of self-defense. He has trained law enforcement personnel and civilians for decades. He has testified in dozens of trials. His expertise and efforts have helped to clear many innocent police officers and citizens who had been forced to resort to force because of the criminal actions of others (more on him in a coming blog).

The appellate court saw it as a case of “If it is good for the goose, it is good for the gander.” The prosecution was allowed to use police officers as experts. The defense should have been afforded the same chance to present a qualified expert with a different analysis.

Why do you need an expert to help establish self-defense? Isn’t it just common sense? If only.

The prosecutors and judges who have to deal with self-defense cases have usually not trained in martial arts, have never taken a real punch this side of junior high school, and have no experience or training with edged weapons or firearms. Despite this lack of experience and knowledge, they will figure prominently into deciding the direction a self-defense case goes.

And the jury? Be assured the prosecution will move to exclude potential jurors who have training in self-defense or who have been the victims of crime. A person who has used force in self-defense will NOT be judged by a jury of their peers. None of the jurors will have gone thru having to hurt another human to stop from becoming the victim of a crime. Those that have will be weeded out in jury selection by the DA.

You will be judged by people who will wonder why you didn’t behave like they have seen Sly, Mel, Arnold, Bruce and hundreds of other actors act thousands of times. They will wonder why you shot the mugger when he “only” had a knife. They will wonder why you didn’t just shoot the bad guy in the leg, or why you were so afraid of grave injury just because the robber was bigger and stronger than you. They will not only be lacking experience in the use of force, they will be full of misinformation about how the workings and results of violence.

And this is where the defense expert comes in. It would have been Mr. Ayoob’s job to educate the jury, but he never got the chance. In any second trial, he will.

More to come…