§703-301 Justification a defense; civil remedies unaffected. (1) In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.

(2) The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action. [L 1972, c 9, pt of §1]

COMMENTARY ON §703-301

This section does not attempt to define the defense of justification. An extended definition is given in the sections which follow. Subsection (1) merely establishes that justification is a defense. This places the burden of producing some credible evidence of the existence of justification on the defendant. If the defendant produces such evidence, or if it appears as part of the prosecution's case, the defendant is entitled to have the defense considered by the jury. The prosecution, however, must prove beyond a reasonable doubt, facts which negative the defense.

Subsection (2) preserves civil remedies for conduct which may give rise to a defense of justification. Civil standards of conduct are higher than we propose for criminal liability. For example, unreasonable conduct on the part of the defendant might suffice for civil liability whereas criminal liability will turn on the defendant's own subjective mental state. It therefore seems desirable explicitly to preserve civil remedies.

Prior Hawaii statutory and case law recognized some of the defenses which the Code unites in this chapter under the defense of justification. Reference to such recognition will be made in the commentary under the sections which follow. There is some language in old Hawaii case law which indicates that the defense of justification is affirmative in nature;1 to the extent that this language would be followed today, the Code represents a change.

Case Notes

Justification is not an affirmative defense and prosecution has burden of disproving it once evidence of justification has been adduced. 60 H. 259, 588 P.2d 438 (1978).

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229 (1980).

"Choice of evils" defense applies to violations. 9 H. App. 115, 826 P.2d 884 (1992).

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§703-301 Commentary:

1. King v. Bridges, 5 Haw. 467, 472 (1885); Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).