Self-Defense: Is Use of Force Allowed?

New York Criminal Attorney Explains Law of Justification

Video Transcript: 

David Jason Cohen: 

In case where there is some sort of physical act, threat, intimidation, violence against the person, that's when the law of justification aka self-defense comes into play.

Molly Hendrickson: 

In a criminal trial, what does it actually mean to say I was acting in self-defense? We're gonna talk to attorney David Jason Cohen about that on today's Ask The Lawyer. David, thanks for joining us.

David Jason Cohen: Thanks having me again, Molly. Great to see you.

Molly Hendrickson: 

Nice to see you too. So we hear it all the time, people accused of violent crime saying I was acting in self-defense, is there really a law of self-defense and can it make an otherwise illegal act legal?

David Jason Cohen: 

There is a law of self-defense, we don't call it self-defense in the law, it's called the law of justification, and yes it can make an otherwise illegal act legal. So justification as the name implies is you were justified in doing something. The law of self-defense says, I have the right to protect myself. If you come after me, I don't have to accept your beating, I don't have to accept your pummeling. If you are the initial aggressor and start hitting me, then I can hit you back. I can use the same amount of force as you use. If you are punching me, I can punch you back, I can kick you, I can push you down, I cannot shoot you in the chest though. I cannot exceed... I cannot use deadly force for instance, against you when you have used non-lethal force against me.

David Jason Cohen: 

The other part of that is, I cannot be the initial aggressor. I cannot come over to someone, smack them in the face, they start punching me and then I beat the crap out of them because they were punching me because in that example, I am the initial aggressor. If I am not the initial aggressor and I am attacked, then I can retaliate the same way. So to the second part of your question Molly, an otherwise illegal act legal, sure, if you come after me and start beating me up or let's say you come after me, and you have a knife or a weapon and I use a weapon and I hit you and hurt you really bad, if you were the initial aggressor, then I was justified in that action and I would not be found guilty. But if I just stabbed you for instance, that's an illegal act. If you came at me with a knife first and I stabbed you, an otherwise illegal act which would be me stabbing you, is now lawful because I am justified, or as we say colloquially, I have acted in self-defense in a manner no greater than you were intending on acting or using harm against me.

Molly Hendrickson: 

So what other kind of crimes are people accused of where they can use justification or self-defense to save themselves?

David Jason Cohen: 

It's a lot of the violent crimes, there's assaults for second or third degree, you can use it in. We've used it in a murder case before and when there is physical acts of violence, you are allowed to defend yourself. You can use again, the same level of violence or attack against your perpetrator as they use against you, so it's usually almost exclusively in violent acts. There's also a menacing where there's threats or intimidation, you can do the same to prevent somebody or to do the same to somebody that they have done to you. It's always in cases... It's not in cases of forgery or fraud, it's not in cases of larcenies, or stealing, or possessions of stolen property. In case where there is some sort of physical act, threat, intimidation, violence against the person, that's when the law of justification, aka self-defense comes into play.

Molly Hendrickson: 

So you've talked about how somebody who is not the initial aggressor can use justification or self-defense, but what about in cases where there's a third party, maybe their spouse or child is being attacked and they come to their aid. In those cases can they use justification or self-defense?

David Jason Cohen: 

That's a great question, Molly, because that comes up often, and believe it or not, there are many defense attorneys who didn't know that you can do that. The answer in a short version is yes, you have the same right to defend another as you do to defend yourself, defense of a third party. You have the right to do that. If in the instance that you're talking about a parent maybe... And during this interview we can talk a little bit about cases that we handle like that, but if you are watching your child, God forbid, being attacked or being beaten, or your spouse, or even a parent, or a grandparent, similarly to what we spoke about earlier, you don't have to sit there and watch it. You have a right, the law gives you permission to go back and battle that force with the same force that was being used by the person who is the initial aggressor.

David Jason Cohen: 

So if I come upon... It doesn't even have to be somebody you know by the way, if I come upon a stranger, if I'm walking down the street and I see at a bus stop and I see somebody just go ahead and smash an old man in the face and he starting to hit the man, I can come over, I could tackle that person, I could go back and hit that person because I am defending another. The right to self-defense does not stop at your own body, the law permits and in my opinion, rightfully so, permits you to defend another and your use of force and defense of another will be justified and therefore the justification or self-defense will be appropriate.

Molly Hendrickson: 

Can you give us any examples of real life cases that you've worked on where somebody, a third party has used self-defense to exonerate themselves and it's worked?

David Jason Cohen: 

Sure, sure. So two of them come to mind off the bat. One was in the subway in New York City. There was a couple of friends, they were down on the subway, and one had gone up to get, I don't know if it was pizza, I forget what exactly they had done. They're with their friend, the friend said they were gonna wait and continue to play on their phone. When the friend who went to get the pizza came down, he saw that his friend who's still there was arguing with somebody else. The other person reached into their pocket and he pulled out a shiny object. He wasn't sure if it was a knife. He wasn't sure if it was some sort of shank, some sort of sharp metal object and he was swinging it at his friend who was sitting there.

David Jason Cohen: 

The guy who ultimately became my client, he reached down onto the subway platform, there was some other wooden stick or something, he said was broken off. It looked like somebody's broken cane and he came from behind the man who was wielding the sharp instrument, and he smashed the guy on the side of the neck. The guy dropped the sharp object and they got into a tussle and started fighting. But the guy got hit in the neck, he couldn't get up, he couldn't fight anymore, he was just trying to battle from the ground. And my client was arrested for assault in the second degree, he was arrested for criminal possession of a weapon. We raised a claim of self-defence justification, and he was acquitted of all charges in defense of another.

David Jason Cohen: 

The second case that I was talking about, I mentioned a little bit earlier, was a father who had come and seen his son was being attacked by three kids in the school yard. The father was coming to pick up the son. He went to the back schoolyard, he sees his son walking, and he saw a bunch of kids jumping him. Terrified, he was terrified. I don't think he was thinking about the law of justification at that point, he was thinking about protecting his son. But he went over there and he grabbed one kid and threw them. The kid's like 15 or 16. Picked up another kid and sort of pushed him off. And as he picked up the third kid, the third kid swung at him and the father grabbed him and he threw him down and he hit him in the face too. All of the three kids scattered. It was captured on video from the schoolyard, they presented it to the police. The police came and arrested the father. We went in, we spoke with the prosecutor. At this point, we didn't have to go to trial.

David Jason Cohen: 

The kid came in, who was attacked, my client's son. He explained what happened. They backed up the video to see the kid being attacked and all charges were dismissed because the father was said to be using self-defense in defense of a third party, his son. All charges dismissed. Client was completely exonerated.

Molly Hendrickson: 

Wow. A situation no father wants to find themselves in. We all know in criminal cases that the attorney must prove their case beyond the reasonable doubt. In these cases of self-defense or justification, how is this... Is that... Do they have to prove their case beyond the reasonable doubt?

David Jason Cohen: 

So in this country, in order to be convicted of a criminal offense, the prosecution, whether it's the United States Attorney's Office or a local prosecutor, a district attorney, county attorney, they have the burden to prove all charges beyond a reasonable doubt. And as we spoke about earlier, we don't have to do anything as defense attorneys, your client does not have to do anything, they have an absolute right to remain silent. However, if you raise the claim of justification or self-defense, you are in essence giving information, giving testimony, presenting evidence. Now, you have admitted to the crime and the examples we've used, the father admitted punching the other kid that face. At the subway platform, the friend admitted to taking the stick and beating the other kid to get him off of his friend. So you have admitted it. In essence, the prosecution's case is proven, because you have admitted the physical act that would otherwise create your culpability or guilt.

David Jason Cohen: 

But once you have raised the spectre of self-defense, now the prosecution must disprove your self-defense claim. Again, this is very unusual in the criminal law, but in this instance, once you have gotten a charge, a jury charge of self-defense, it is the government's obligation, just like it is to prove an initial crime, now they have the obligation to disprove beyond the reasonable doubt. The same level is required to disprove beyond a reasonable doubt your claim of self-defense. It is a very high burden for the prosecution. It is a great defense. We love when we have those opportunities to use that defense. It holds the prosecution to a very strong burden, and we've been very successful at CFB Law in acquitting clients, exonerating clients, and convincing the prosecution not to even bring charges when we have raised the defense of justification, have been able to show acts that have constituted an actual justification. The prosecution oftentimes cannot reach their burden of disproving justification beyond the reasonable doubt.

Molly Hendrickson: 

David, great information today. Always nice to talk to you.

David Jason Cohen: 

Same here, Molly. Thank you.

Molly Hendrickson: 

That's gonna do it for this episode of Ask The Lawyer. My guest has been David Jason Cohen. If you wanna ask him about your situation, you can call the number on the screen. Thanks for watching. I'm Molly Hendrickson for Ask The Lawyers.

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