§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.



  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.



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



 



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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).