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OPINION

When it comes to guns and claims of self-defense, juries need guidance

As a general matter, a criminal defendant loses the right to claim he acted justifiably in self-defense if he was the initial aggressor or provocateur.

During the trial on Nov. 9, Mark Richards, Kyle Rittenhouse's lead attorney (left) and Kenosha Police Department Detective Ben Antaramian looked at the weapon Rittenhouse used on the night of Aug. 25, 2020.Pool/Getty

Jurors in two recent high-profile homicide cases involving guns and claims of self-defense have spoken. In one case, the jury found the defendant, Kyle Rittenhouse, not guilty on all homicide charges. In the other case, the jury found Greg and Travis McMichael and William “Roddie” Bryan guilty of murder in the death of Ahmaud Arbery.

Important factual differences contributed to the different verdicts in these cases. The skill sets of the attorneys and dispositions of the judges involved played a role as well.

One thing both cases had in common, however, was that each judge gave the jury an initial-aggressor or provocation instruction. The fact that the juries in the two cases were given such an instruction yet reached opposite conclusions indicates that the mere giving of such an instruction in self-defense cases will not predetermine the outcome.

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Until these two cases, few people were aware of the initial-aggressor limitation on the defense of self-defense. Now, that limitation has become part of the national conversation.

As a general matter, a criminal defendant loses the right to claim he acted justifiably in self-defense if he was the initial aggressor or provocateur. However, initial-aggressor rules vary from state to state. Some states say that if one was the aggressor, one loses the right to claim self-defense unless one withdrew from the encounter and successfully communicated that withdrawal to the other person. Other states provide that if one provoked the other person to attack with the intent of using that attack as a pretext to claim self-defense, one loses the right to self-defense.

The question of whether the defendant was the initial aggressor is supposed to be a question of fact for the jury to decide. Too often, however, the jury never gets to decide this question because the judge declines to give an initial-aggressor instruction.

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To ensure that the jury in cases involving the use of a firearm and a claim of self-defense can decide whether a defendant was the initial aggressor or provocateur, judges should be required to give an initial-aggressor instruction whenever an individual brought a gun to an encounter and displayed or pointed it at another person prior to shooting them and then claims self-defense. Both the display of a firearm and the pointing of a firearm at another person are threatening acts that ordinarily would create a reasonable apprehension of death or serious bodily injury in another person, and thus should be viewed as prima facie evidence of aggression.

As the verdicts in these two high-profile cases show, the giving of an initial-aggressor instruction does not mean the defendant will necessarily lose the right to claim self-defense. It just means the jury will be able to decide the question.

The jury can decide that the defendant was not the initial aggressor and if they do so, the defendant’s claim of self-defense remains viable. This appears to have happened in the Rittenhouse case. The not-guilty verdicts on all counts suggest the jury believed Rittenhouse acted in self-defense when he shot and killed two men and wounded a third. These verdicts show that the jury rejected the prosecution’s argument that Rittenhouse provoked the violence and lost the right to claim self-defense.

Alternatively, a jury can decide that the defendant was the initial aggressor and therefore was not justified in shooting the victim. This appears to have happened in the McMichaels and Bryan case. The guilty verdicts suggest the jury saw the defendants as the aggressors who lost the right to self-defense.

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Either way, the jury should at least be given the opportunity to make the determination as to whether the defendant was the initial aggressor, and the only way to ensure that it can decide this important question is to mandate that judges provide this instruction, at least in cases involving guns and claims of self-defense.

Cynthia Lee is the Edward F. Howrey Professor of Law at the George Washington University Law School and author of “Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom.”