I know how to translate physical
What Lawyers Don't Know About Danger
On this page I'm going to explain just three of the elements
for reasonable belief of danger. Look for them in your client's case. While
laypeople typically recognize these as dangerous, clients often can't
articulate how they knew they were legitimate danger.
Let me show you in easy to understand terms. When is it immediate threat'? When you've just been thrown out of an airplane at 10,000 feet or when you're twenty feet from impact? Or is immediate threat back when someone was trying to throw you out of the plane?
So where does the threat become immediate? Some prosecutors will argue your client couldn't have been certain he was in immediate threat until the last ten feet of the fall. You need to be arguing the threat was before going out the plane's door. This is the crux of the argument of immediate threat. What were 'the circumstances at the exact moment' versus what would they'd inevitably be in a few seconds?
This comparison may seem a little hyperbolic, but with violence there are certain conditions that are like going out the plane's door. Once they happen, there is no recovery. It's just a matter of degrees. (Is it a punch or a bullet coming at you?) That also includes a point past which your client would be incapable of defending himself
A more relevant example of this idea based
on a would-be armed robbery case.
the robber fired and dropped didn't matter,
because the clerk hadn't 'seen it' yet when he decided to act.*
In a similar vein when it comes to draws from concealment, 1.5 seconds from concealment to firing is considered a good time in the shooting world. With no extra complications, a time of two seconds is far more common. That's how fast a lethal threat can develop during a robbery.
That's just one example of immediate threat when it comes to self-defense. There are many others. The question you must present to the jury is if the prosecutor's standards of immediate threat are reasonable? Is it reasonable for your client to be expected to wait until it's too late to successfully defend himself before he acts?
Threat display is not a legal term, but it is a known term in other fields (as is "display aggression"**). In a legal context, a threat display is the deliberate attempt to create the reasonable belief you're about to be attacked.
Conversely, if your client is claiming self-defense, odds are, it will be through threat displays the prosecutor will attempt to undermine that claim.
When it comes to self-defense cases there is no issue more complicated than threat display. Not that display aggression is complicated. They're not only easy to understand, but immediately recognizable. That's because we all do this behavior. It's just a matter of style.
Display aggression is a type of communication as natural and unconscious as breathing. Basically, we're 'wired' to do this behavior. This isn't just a human behavior either. All sentient beings do them. (Dogs growl, cats hiss, crabs wave their claws...). Taking it back to the human level, while we're aware of it, we're not conscious of the details.
Where things get tricky is threat displays are a subject where the law and our human 'wiring' are in direct conflict. That's a problem. Our default behavior to avoid physical violence is – literally – illegal.
To understand this requires a fast bit of explaining. You may not believe this, but humans are amazingly non-violent animals.*** Why? Because we are first and foremost communicators. The final point is human violence can be understood as a way to achieve an end. Those three points come together in a weird paradox. While we're overwhelmingly non-violent, to achieve our ends we use the threat of violence all the time. That's to say, instead of physically attacking we try to get what we want by sending the message, "I'm not attacking right now, but I MIGHT (especially if you don't change your behavior).
That brings us back to threat displays. In order to convincingly sell this message of danger, our body language and behavior must portray danger. Without it, it's a no sell. I want you to consider whether– according to your state laws– these threat displays, these 'near instinctive' behaviors have crossed the line into assault/ battery? (Whatever they call putting someone into fear of being physically attacked.) Because you can be certain the opposing counsel will try to sell it as a 'fight' (hence illegal).
At the same time, overwhelmingly violence comes with instructions how to avoid it. (Think in terms of conditional threats.) Will violence happen if you don't take the offer? Is it a bluff? Is it a build up to attack? Or perhaps dual posturing and verbal aggression as the build up to mutual combat (a fight) All of these are possible.
Or is it an attempt to deter an attack?
Something else you'll need to bring up is
how your client knew he was being threatened. Think of elements of a threat
display as bricks in the wall. One brick alone could mean anything, but when
they are combined they make over all and easily identifiable
If committed inside attack range, then every move is a coin toss. Without a great deal of training, it's impossible to tell if it's a threat or the beginning of a physical attack until it's too late. Again, without massive training, attacks from inside this distance are fast and difficult to block until it's too late.
If those actions are done charging into attack
range, it's probable an attack has been initiated. Even if the individual
claims he wasn't going to make physical contact, that individual did everything
in his power to convince your client he was being attacked – but it hadn't
gotten there yet.
At it's most basic, attack range is the distance
someone can effectively attack you from without taking a step. The step is
important as without it all it takes is one fast move move and it's an attack.
It varies if he has a rifle, a pistol, a knife, a club, or is empty handed. For
brevity, we'll just stick with empty handed.
What You Don't Know Can Kill You