NH Supreme Court - Landmark Victory for Self-Defense Right
September 18th, 2012
11/20/2006. Court Reverses Manslaughter Conviction Because Defendant Had Right to Claim Self-Defense.
In State v. Ethan Vassar, 154 N.H. 370 (2006), in an appeal briefed and argued by Theodore Lothstein, the New Hampshire Supreme Court reversed a provocation-manslaughter conviction and ordered a new trial. The 'victim,' Vassar's brother, went on a drunken rampage, threatening Vassar, assaulting Vassar's mother, and vowing to kill them both along with any police officers who might try to stop him. Finally, believing his brother had gone to get a rifle to carry out his threats, Vassar pursued and shot his brother five times in rapid succession, killing him.
The trial judge refused to allow Vassar to argue self-defense, because the 'victim' was unarmed when shot and Vassar shot him. In an important victory not just for Vassar but for those who would, after years of domestic abuse, finally rise up and defend themselves, the Court held that the State should have been required to disprove self-defense beyond a reasonable doubt.
Here's what you can learn from this decision about the right of self-defense in New Hampshire:
To have a right to self-defense, you have to act reasonably, but you DON'T have to be right. In other words, if client reasonably believes that a "victim" is armed or about to arm himself, the client can use deadly force, even if 20/20 hindsight shows us that the victim was not about to use deadly force, and perhaps had no intention of arming himself.
"Reasonably" may include, as it did in this case, the shooting of an unarmed man. In the more typical simple assault case, Vassar gives you authority to argue self-defense where the "victim" has provoked and/or escalated the encounter, but the defendant was the first one to punch, kick, push, etc.
The defendant must also subjectively believe he needs to use self-defense, in addition to the requirement that he act reasonably.
The NH Superier Court joins the long list of other jurisdictions that allow, under Rule 404(b), the defense to introduce the victim's prior history of violence, to the extent known to the defendant, because that history is relevant to the defendant's state of mind - the reasonableness of his belief that he needed to act in self-defense.
Read Court's Decision - State v. Ethan Vassar (2006).