In this important case the court of appeals holds that the pattern jury instruction for self-defense in cases involving reckless or negligent crimes does not properly apprise the jury that the state has the burden to prove the defendant did not act in self-defense.
Austin stabbed two people during a confrontation on a street and was charged with two counts of first-degree recklessly endangering safety with a dangerous weapon. Though testimony about what led to the stabbings varied greatly, Austin presented enough evidence to raise both self-defense and defense of others as issues for the jury’s consideration. (¶2). Because he was charged with reckless endangering, the trial court instructed the jury with Wis JI–Criminal 801, which integrates consideration of self-defense into the definition of the elements of the offense–in particular, whether the defendant’s conduct created an unreasonable risk of death or great bodily harm and whether the defendant’s conduct showed utter disregard for life. (¶7 n.4). By contrast, Wis JI–Criminal 800 and 805, which cover intentional crimes, explicitly inform the jury the state must prove beyond a reasonable doubt that the defendant did not act lawfully in self-defense, e.g., State v. Head, 2002 WI 99, ¶106, 255 Wis. 2d 194, 648 N.W.2d 413. (¶8).
The Jury Instruction Committee explains that it integrated self-defense into the elements because recklessness requires that conduct create an unreasonable risk of harm, and “[a] risk of harm is not unreasonable if the conduct undertaken is a reasonable exercise of the privilege of self defense…. [C]riminal recklessness or criminal negligence and lawful actions in self defense cannot coexist.” In cases involving the intentional causing of harm, on the other hand, “intent to cause harm and self defense can exist at the same time. Thus, the absence of the privilege is identified as a fact the state must prove in addition to the statutorily defined elements of the intentional crime.” Wis JI–Criminal 801, at 3, n. 1. The state defended the Committee’s approach, arguing that self-defense is a negative defense to reckless or negligent crimes, not an affirmative defense. For example, a defendant raising the affirmative defense of perfect self-defense may be found not guilty even if the state proves the defendant intentionally killed the victim, while an intentional-homicide defendant raising the defense of accident is raising a “negative” defense because the claim of accident, successfully shown, negates the intent element of intentional homicide. (¶13 n.6, citing State v. Watkins, 2002 WI 101, ¶39, 255 Wis. 2d 265, 647 N.W.2d 244).
The court rejects the Committee’s conclusion and holds that Wis. JI-Criminal 801 fails to provide a proper statement of the state’s burden of proof:
¶16 The Committee’s explanation notwithstanding, we believe that when a defendant successfully makes self-defense an issue, the jury must be instructed as to the State’s burden of proof regarding the nature of the crime, even if the defense is a negative defense. See [State v.] Schulz, 102 Wis. 2d [423,] 429-30[, 307 N.W.2d 151 (1981)] (if defense is attack on element of crime, “the [S]tate bears the burden of proving this element beyond a reasonable doubt” and when a negative defense is asserted, “the burden of persuasion cannot be placed upon the defendant without violating his right to due process”); see also State v. Pettit, 171 Wis. 2d 627, 640, 492 N.W.2d 633 (Ct. App. 1992) (If a defendant successfully raises a negative defense, “the burden is upon the [S]tate to prove beyond a reasonable doubt that defendant’s evidence did not negate an element necessary to convict.”).
¶17 Wisconsin JI—Criminal 801 informs the jury that it “should consider the evidence relating to self-defense in deciding whether the defendant’s conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another.” By itself, however, this standard instruction implies that the defendant must satisfy the jury that he was acting in self-defense. In doing so, the instruction removes the burden of proof from the State to show that the defendant was engaged in criminally reckless conduct.
¶18 Consequently, we are not convinced that the jury instructions in this case provided the jury with a proper statement of the law of self-defense. See [State v.] Ziebart, [2003 WI App 258,] 268 Wis. 2d 468, ¶16[, 673 N.W.2d 369].
 Further, while the Committee’s comments are generally useful, we do not fully follow their reasoning in omitting an instruction on the burden of proof for self-defense in negligent and reckless crimes when the closely related defense-of-others theory has only one instruction, Wis JI—Criminal 825, which instructs the jury on the State’s burden of proof irrespective of whether the underlying crime is intentional or negligent/reckless.
The trial court also instructed the jury on defense of others, Wis JI–Criminal 825, which does inform the jury that the state must prove beyond a reasonable doubt that the defendant did not not act lawfully in defense of others. But that instruction was given only as to the first degree reckless endangering charge, and not to the lesser included of second degree reckless endangering. On the lesser, the court told the jury only that they should consider evidence relating to self-defense or defense of others in deciding whether the defendant’s conduct created an unreasonable risk. (¶¶8-10). Thus, there was no mention of the state’s burden of proof in either of the instructions on the lesser, and this, too, was error. (¶19). The instructional errors resulted in the real controversy not being tried, so Austin is entitled to a new trial in the interests of justice. (¶¶20-23).
This case has implications beyond Wis JI–Criminal 800 and 801. For instance, the instructions covering first and second degree intentional homicide mitigated to reckless homicide based on self defense (Wis JI–Criminal 1016 and 1017) and the instructions addressing the § 939.45(5) privilege of discipline of a child as a defense to child abuse (Wis JI–Criminal 950 and 951) also instruct the jury differently depending on whether the offense being considered involves intentional versus reckless conduct. Bottom line: If you’re defending a charge of criminally reckless or negligent behavior and raising a privilege, look carefully at any pattern instruction, and make sure the jury is told the state has the burden of proving beyond a reasonable doubt the privilege doesn’t apply.