§703-301  Justification a defense; civilremedies 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 underthis chapter does not abolish or impair any remedy for such conduct which isavailable in any civil action. [L 1972, c 9, pt of §1]

 

COMMENTARY ON §703-301

 

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

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

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

 

Case Notes

 

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

  Defendant's claim of justification, in defense againstprosecution for terroristic threatening, was established regardless of whetheror not defendant used deadly force.  1 H. App. 167, 616 P.2d 229.

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

 

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§703-301 Commentary:

 

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