We have a case where a fight occurred in the hall outside the defendant's apartment. The defendant stabbed the victim in the chest and he died shortly thereafter. We would be in fairly good shape under the old law, the victim was unarmed. The defendant's attorney is going to try to use self defense under 9.31 (b) (1) (A) saying the angry victim was trying to push his way into the defendant's apartment when the defendant stabbed him. The fight took place a foot or two outside the defendants apartment door from the blood. There is no physical evidence to show whether the victim was inside or out when he was stabbed. Does anyone have any recommendations in how to voir dire on the "Castle doctrine" self defense issue?

Should have said 9.32 (b) (1) (A) Penal Code

Your question and scenario seem to accept the proposition that deadly force may be used anytime you have reason to believe the other person was attempting to enter your habitation unlawfully and with force. Surely the law still requires some evidence that the other person was using or attempting to use deadly force unlawfully, otherwise the defendant cannot claim to have formed the necessary belief (reasonably or otherwise). Of course, the fact the victim was unarmed, does not necessarily answer the question about the basis for the actor's belief. I question what "with force" means under 9.32 (b)(1)(A) in the context you present. Maybe the recording of the hearing on S.B. 378 before the Senate Committee on Jurisprudence on Feb. 28, 2007 would be of some help.

I would stress that proving the negatives in (b)(2) and (b)(3) should be quite difficult for the defendant. I believe voir dire on justification defenses must be in very simple and general terms, i.e. that it is a limited defense and that you accept the burden of persuading the jury that what the defendant did was not immediately necessary nor objectively reasonable, once they hear all of the evidence.

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Originally posted by Martin Peterson:
Your question and scenario seem to accept the proposition that deadly force may be used anytime you have reason to believe the other person was attempting to enter your habitation unlawfully and with force.

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The problem is that the law creates the presumption that deadly force is reasonable under 9.32 (b)(1)(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment.

Once the victim trys to force his way in - this presumption is going to raise it's head. When this came up in a recent voire dire in my jurisdiction - everyone agreed that someone trying to force their way into a person's home is fair game.

I think the best way to combat it in the propsed situation is focus the evidence (if you can and it is supported) on a fight that started outside. If that is the case and your victim did not have a weapon - then the focus should probably be on 9.32 (a)2(A) and (B)

Fight started outside, no weapon, and the defendant started it then how are they going to show a reasonable belief that victim was about to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery? The defendant knew what was going on. (again if those are your facts)

Of course all my opinion and I could be way off base. I do believe we need to get the leg to revisit this and make the whole thing clearer and cleaner.