Abstract
A defendant is charged with criminal battery and asserts self-defense at trial. The defense calls witnesses who would testify that, about ten minutes before the fight, the alleged victim said he was going to “find” the defendant and “end him.” But the trial judge excludes the testimony because the threat, while heard by several witnesses, was not communicated to the defendant. Therefore, the judge says, the threat cannot be relevant in determining whether the defendant “reasonably believed” he was in imminent danger at that time.
This Article explores the theoretical foundation for this common ruling and demonstrates why it is deeply flawed. For reasons that are philosophical, historical, and even scientific, a defendant must be allowed to prove that his or her belief of imminent danger was not just a reasonable belief but also turned out to be accurate, i.e., was a true belief.
Fortunately for the defense, several existing legal doctrines also support the admission, at trial, of the alleged victim’s threats and similar evidence not known to the defendant at the time of the incident. Specifically, such evidence (a) corroborates the defendant’s testimony, (b) shows that the alleged victim was the first aggressor, (c) provides the necessary context for the jury, and (d) is central to the defendant’s right of confrontation.
Finally, this Article combines the theoretical concepts with the legal doctrines to create something practical: a model brief which can be used to oppose a prosecutor’s motion to exclude such evidence. Alternatively, the brief can be reformatted as a defense motion to preemptively seek the admission of such evidence.
Repository Citation
Michael D. Cicchini,
Justified: Reasonable Beliefs, True Beliefs, and Self-Defense,
109 Marq. L. Rev. 1059
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss3/6