SELF-DEFENSE

The Kyle Rittenhouse trial and verdict have America talking about self-defense.

Self-defense is an example of an affirmative defense. An affirmative defense is one other than a denial of any fact alleged on the indictment. It’s called an “affirmative” defense because it’s only an issue if the defendant brings it up.

Even if the prosecutor proves every fact alleged on the indictment, he still can lose if the defendant asserts that there are additional facts that should decide the outcome. One might characterize this as a defense of “Yes, but…”

Two broad types of affirmative defenses are excuse and justification. Excuse can be explained as society telling the defendant, “What you did was wrong, but we understand it.” For example, Alabama recognizes a defense when the defendant acts under duress, meaning he was compelled to commit a crime by the threat of imminent death or serious physical injury. The crime was wrong, but society understands it and excuses it.

Self-defense is not that type of affirmative defense. Instead, self-defense is classed as a justification defense, meaning it can be explained as society telling the defendant, “What you did was right, and we approve of your actions.”

In Alabama, a person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose.

In 2013, the Alabama Legislature dramatically expanded self-defense in our state. Most notably, Alabama became a “stand your ground” state. Before that, a person had a duty to retreat before exercising self-defense and could be acquitted based on self-defense only if it was impossible for him to escape the encounter. The 2013 amendment removed that requirement. Now, a person can exercise self-defense without retreating, as long as he had a legal right to be where he was.

Another change from the 2013 amendment is that a person is presumed justified in using deadly physical force if he reasonably believes the person against whom he uses force was engaged in certain crimes, including burglary, robbery and forcible rape.

Interestingly, the Alabama self-defense law has a bizarre fixation on the words, “federally licensed nuclear power facility.” That phrase appears in the statute twice.

The burden of proof in a criminal case makes this situation even more complex. Whether in Wisconsin or in Alabama, when a defendant asserts self-defense, the prosecutor is required to prove that the defendant’s actions did not constitute self-defense. If the jury believes there is a reasonable possibility that the defendant’s actions meet the requirements for self-defense, then it must find him not guilty.

In other words, Kyle Rittenhouse really was not found to have acted in self-defense. He was not found not to have acted in self-defense. Clear as mud?