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Georgia Criminal Law Review

Document Type

Article

Abstract

The right to self-defense is one of the oldest and most universal concepts in Anglo-American criminal law and criminal procedure. Under this defense, an accused person, who honestly believed that using force was necessary to protect themself from imminent danger, did nothing criminal even if another person was harmed as a result. To assert self-defense at trial, however, the accused must admit to intentionally committing the forceful acts alleged to explain how they only used such force to save themself from immediate harm. Once an accused has made such a grave admission, the jury must consider whether the force was in fact justified—meaning the accused is innocent.

Notwithstanding, this article illuminates how some trial judges are denying the accused’s valid request to instruct the jury on their self-defense claim based on personal opinions, prejudices, and biases about the credibility of the accused’s proof. Just last year alone, at least twenty state judges in twelve jurisdictions were found to have erroneously denied the accused’s right to have the jury consider their substantiated justification defense. These judges, this article argues, are unilaterally usurping the jury’s exclusive fact-finding role to gatekeep it from deliberating on the accused’s only defense—leaving the jury no choice but to convict because the accused already conceded to intentionally committed the alleged acts when explaining the justification for their conduct. These judicially predetermined outcomes are effectively, this article proposes, unconstitutional directed verdicts of guilt.

What then is the remedy for the convicted person who suffered this type of constitutional violation? Because the Supreme Court has denied certiorari on this issue, declining to consider whether this violation requires automatic reversal or harmless error review on appeal, state appellate and federal circuit courts across the country are split on which standard of review applies to this instructional error of constitutional magnitude. To resolve the discrepancies in appellate outcomes across and within jurisdictions, this article argues that a court’s erroneous refusal to instruct the jury on an accused’s evidentiarily substantiated justification defense can never be ‘harmless.’ Because such an error vitiates the decision-making balance of powers required by due process to ensure that a jury, rather than a solitary judge, decide whether the accused is guilty or innocent, this work ultimately calls upon the highest federal and state courts to recognize this injustice and finally come to the resolution that such unconstitutionally directed verdicts must be automatically reversible on appeal.

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