Better to be judged by twelve than carried by six

I've had two or three recent assault cases that my clients have wanted to pursue the affirmative defense of justification (self-defense).  The justification defense is a hard defense to prove.  Although it adds an element to the State's case because they now have to prove that the defendant was not justified in using force on the other person, it is can be an easy task because of the law requires you to seek an alternative course of action if available. 

The Iowa Bar Association's Criminal Jury Instructions spell out the requirements of self-defense:

If the State has proved any one of the following elements, the defendant was not justified:

1. The defendant started or continued the incident which resulted in [injury] [death].

2. An alternative course of action was available to the defendant.

3. The defendant did not believe he was in imminent danger of death or injury and the use of force was not necessary to save him.

4. The defendant did not have reasonable grounds for the belief.

5. The force used by the defendant was unreasonable.

In lay mens terms they can be thought of like this...

1. You started it, so you can't claim self defense.
2. You should have run away.
3. You didn't REALLY think you were going to be killed or injured and didn't really NEED to use force to protect yourself.
4. You shouldn't have used force because the average person in your situation wouldn't have felt there was an imminent threat of injury or death.
5. You shot an unarmed man, kicked him when he was down, or threw one punch too many.

As I said earlier, the one that typically sinks the claim of self-defense is #2.  That is the one I see prosecutors arguing most, and the one that comes up most when talking to clients. The reason it causes problems for claims of self-defense is that the law does require you to attempt to avoid the confrontation.  The instructions on self-defense further state that:

if a defendant is confronted with the use of unlawful force against him, he is required to avoid the confrontation by seeking an alternative course of action before he is justified in repelling the force used against him.

That is all well and good, but many times with self-defense cases you are talking about situations where a threat is suddenly present and the defendant is put in a situation of having to make a snap decision about how to handle it.  The classic bar fight is a good example:

You are at a bar when a drunk patron spills his drink on you and then starts cursing you out for "bumping into him".  You try to calmly talk to him or even outright ignore him but he persists.  After a few seconds he grabs your shirt...what do you do?  Do you collapse into the fetal position, cover your ears, and scream for help?  Do you attempt to bolt for the nearest exit hoping he won't get any punches in on the back of your head?  No...most people probably either break his grip forcibly, which probably leads to punches being thrown, or they just start punching. 

The prosecutor though will say you should have ran, screamed for help, or tried to call 911 on your cell phone.  Usually I will then try to explain to the jury that a defendant has a short amount of time to make a decision about what to do, and that there are no perfect choices.  You ether use force on the person or risk them using it on you....as Booker T. Washington once said....It is better to be judged by twelve, than carried by six.