Under the criminal code, there are several defined circumstances where the use of force by an individual will be deemed justified and so constitute a defense to a criminal prosecution.70 For example, use of force is justified when it is required by law.71 Presumably, this is limited to the degree of force necessary to perform the act required by law. Further, individuals with special responsibilities for the care, discipline or safety of others, such as children and incompetent people, may use a limited amount of force to safeguard and promote the welfare of such persons.72
Justification is not an affirmative defense placing the burden of proof on the defendant. Instead, the defendant must only come forward with some credible evidence of the existence of facts making the act justifiable. If the defendant does so, he or she is entitled to have the matter considered by the jury on the basis that the burden is on the prosecution to prove absence of justification, and if the defendant’s evidence raises a reasonable doubt as to justification, the defendant is entitled to a judgment of acquittal.73
Some of the more common justifications include:
Choice of Evils. Conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.74
This defense does not apply where justification is inconsistent with other rules regarding justifiable use of physical force or with some other provision of law.75 If the legislature has enacted laws resolving the conflict between the two choices, a defendant’s decision to resolve the conflict in a manner contrary to the legislative scheme is deemed inconsistent with other provisions of law and so not a defense. Thus, a choice of evils defense was rejected in a criminal prosecution for disorderly conduct and criminal trespass at an abortion clinic.76
Self-Defense. Perhaps the most common justification is self-defense. Use of force in self-defense is justified where the defendant honestly believes that force is immediately necessary for self-protection against the use of unlawful force by another person on the present occasion.77 The defendant must show that he or she believed that force was necessary and that his or her response was an immediate reaction to a present necessity.78 This is a subjective test.79 Since the time available for deliberation in these circumstances is generally limited, the defendant may estimate the need for employing force in self-defense under the circumstances as the defendant believed them to be at the time, without retreating, surrendering possession or doing any other act that the defendant has no legal duty to do or abstaining from any lawful action.80
The use of deadly force in self-defense is justifiable only if the defendant believed that such force was necessary for self-protection from death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.81 Deadly force is not justified, however, if the defendant was the initial aggressor and had the purpose of causing death or serious physical injury.82 Nor may a defendant use deadly force if the defendant can retreat to a place of complete safety.83 A defendant, however, is not obligated to retreat from his or her home or place of lodging, whether or not the defendant was the initial aggressor.84 A defendant is also not obligated to retreat from his or her place of work, unless the defendant was the initial aggressor.85
The use of force is not justified to resist arrest which the defendant knew or should have known was being made by a peace officer, whether or not the arrest was lawful.86 Self-defense is not a valid defense to a charge of rape.87
An occupant of a dwelling charged with killing or injuring an intruder who was unlawfully in that dwelling can claim self-defense if the occupant was in his or her own dwelling at the time of the offense, and: (1) the encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or (2) the occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or (3) the occupant demanded that the intruder disarm or surrender, and the intruder refused to do so.87.1 Once the danger has passed, however, the use of deadly force is no longer justified. Therefore, once the intruder has been subdued, subsequently killing the intruder may not be justified.87.2
Defense of Others. A defendant may use force to protect a third party provided that (i) the defendant would have been justified in using force in self defense had the defendant been in the shoes of the third party; (ii) the third party would be justified in using protective force under the circumstances as the defendant believed them to be; and (iii) the defendant believed that intervention was necessary to protect the other person.88 There is no requirement of reasonable belief, so the defense applies even if the defendant’s belief was unreasonable or mistaken.89 The rules relating to the obligation to retreat applicable to the invocation of the justification of defense of others are similar to those applied to the justification of self-defense.90
Protection of Property. Force may be used when a defendant believes that such force is immediately necessary (i) to prevent the commission of criminal trespass or burglary in a building or upon real property in the defendant’s possession or in the possession of another person for whose protection the defendant acts; (ii) to prevent entry upon real property owned by the defendant or a third party for whose protection the defendant acts; or (iii) to prevent theft, criminal mischief or any trespassory taking of tangible, movable property in the defendant’s possession or the possession of a third party for whose protection the defendant acts.91
The use of force to protect property is justified only if the defendant first requests that the person against whom the force is used desist from interfering with the property, unless the defendant believes that a request would be useless or dangerous to the defendant or to a third party or result in substantial loss to the property sought to be protected.92
Use of deadly force to protect property is justifiable only if the defendant believes that (i) the person against whom the force is used is attempting to dispossess the defendant of his or her dwelling otherwise then under a claim of right, or (ii) the person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either (a) had employed or threatened deadly force against or in the presence of the defendant, or (b) under the circumstances existing at the time, the defendant believed that the use of non-deadly force would expose the defendant or another person present to the reasonable likelihood of serious physical injury.93
If a defendant is successful in asserting this defense, then the defendant may not be held liable in a subsequent civil suit brought by the party against whom the force was used.94
70. 11 Del. C. § 461.
71. 11 Del. C. § 462.
72. 11 Del. C. § 468.
73. 11 Del. C. § 461, commentary; Hamilton v. State, 343 A.2d 594 (Del. 1975).
74. 11 Del. C. § 463; Alexander v. Cahill, 829 A.2d 117, 128 (Del. 2003); Bell v. Shahan, C.A. No. 93C-07-07, slip op. at 2, Balick, J. (Del. Super Feb. 15, 1994).
75. 11 Del. C. § 462.
76. Gies v. State, No. 60, 1988, 61, 1988, 237, 1988 & 238, 1988, slip op. at 2-3, Moore, J. (Del. Sept. 5, 1989) (ORDER), disposition reported at 567 A.2d 421 (Del. 1989) (TABLE).
77. 11 Del. C. § 464(a); Moor v. Licciardello, 463 A.2d 268, 270-71 (Del. 1983).
78. 11 Del. C. § 464, commentary.
79. Moor v. Licciardello, 463 A.2d 268, 270-72 (Del. 1983),
80. 11 Del. C. § 464(b) & commentary.
81. 11 Del. C. § 464(c).
82. 11 Del. C. § 464(c)(l).
83. 11 Del. C. § 464(e)(2).
84. 11 Del. C. § 464(e)(2)(a) & commentary.
85. 11 Del. C. § 464(e)(2)(b).
86. 11 Del. C. § 464(d).
87. Marvel v. State, No. 106, 1990, slip op. at 6, Walsh, J. (Del. Jan. 25, 1991) (ORDER), disposition reported at 587 A.2d 454 (Del. 1991) (TABLE).
87.1. 11 Del. C. § 469.
87.2. Warrington v. State, 840 A.2d 590, 591-94 (Del. 2003).
88. 11 Del. C. § 465(a).
89. 11 Del. C. § 465, commentary.
90. 11 Del. C. § 465(b), (c) and (d).
91. 11 Del. C. § 466(a).
92. 11 Del. C. § 466(b).
93. 11 Del. C. § 466(c).
94. 11 Del. C. § 466(d).
© 2010 David L. Finger