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Defenses – Imperfect Self-Defense – Jury Instructions

State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan


¶103. Based on the plain language of Wis. Stat. § 940.05(2), supported by the legislative history and articulated public policy behind the statute, we conclude that when imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference. If the jury concludes that the person had an actual but unreasonable belief that she was in imminent danger of death or great bodily harm, the person is not guilty of first-degree intentional homicide but should be found guilty of second-degree intentional homicide.

¶104. In light of this analysis, we must modify Camacho [176 Wis. 2d 860, 869, 501 N.W.2d 380 (1993)] to the extent that it states that Wis. Stat. § 940.01(2)(b) contains an objective threshold element requiring a defendant to have a reasonable belief that she was preventing or terminating an unlawful interference with her person in order to raise the issue of unnecessary defensive force (imperfect self-defense).

It follows that Wis JI-Criminal No. 1014  is wrong, and “requires amendment.” ¶146. The court requests the Instruction Committee to revise it, but suggests that the pre-Camacho versions may be correct. ¶147. (See, however, State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).)

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