Clearing your name is our #1 priority.

meet the attorneys case results
  • Self-Defense vs. Assault: What Is the Difference?

    Posted on by JACK MKHITARIAN

    Self-Defense vs. Assault: What Is the DifferenceDefending yourself from threatened harm is your right. However, claiming self-defense does not always help you avoid criminal charges. The idea that you could claim self-defense and still have to go to court can sometimes baffle people. 

    The distinction between self-defense vs. assault can be hard to understand. Talking to a seasoned criminal defense lawyer can help you know the difference between self-defense and assault. For well over 20 years, the New Mexico Criminal Law Offices have focused on protecting the rights of people just like you. Don’t hesitate to contact us today.

    What Is the Difference Between Self-Defense and Assault?

    Assault is a crime. New Mexico law divides the crime of assault into three theories. The theories of assault are:

    • An attempt to commit a battery upon another;
    • An unlawful act, threat, or menacing conduct that causes another to reasonably believe a battery is imminent; or
    • The use of insulting language toward another that impugns the person’s honor, delicacy, or reputation. 

    Thus, assault refers to the threat of being hit and not the actual striking of another. In other words, no actual physical contact needs to happen for an assault to occur—the threat and fear of being struck are enough.

    So, to be clear, assault does not require contact, but battery does. Under New Mexico law, battery means unlawfully and intentionally touching or applying force to another person’s body. To constitute a crime, the touching must be done in a rude, insolent, or angry manner.

    Self-Defense vs. Assault

    Now that we have defined assault let’s look at how it relates to self-defense. 

    To put it simply, assault is a crime, but self-defense is a defense against a crime of violence. Self-defense can be a defense to assault, battery, and other crimes of violence against another. But you cannot simply make the claim and rest on that. Your lawyer will have to show that your use of force was justified to get the judge to give the jury a self-defense jury instruction.

    In other words, you can only argue self-defense if the judge rules that your jury should receive a self-defense instruction. In New Mexico, a judge must instruct the jury on self-defense if the issue of self-defense arises at the trial and the jury hears sufficient evidence of every element of self-defense. Then the jury has to decide whether you did, in fact, act in self-defense based on the evidence presented. 

    If the judge does not believe that you presented enough evidence of self-defense, they do not have to give the jury instruction. If the judge refuses the jury instruction, your lawyer cannot argue the point, and the jury cannot consider self-defense during their deliberations. 

    You should understand that if you argue self-defense, then the prosecutor must prove beyond a reasonable doubt that you DID NOT act in self-defense to convict you. Otherwise, the jury must find you not guilty.

    What Does It Mean to Claim Self-Defense?

    Claiming self-defense at trial means you want the judge to instruct the jury that they can acquit you if they believe you acted in accordance with the law of self-defense. Therefore, defining self-defense is critical. 

    Subjective Element: Fear

    The New Mexico self-defense jury instruction says that the law allows you to act in self-defense if you:

    • Perceive a threat of imminent bodily harm, 
    • You were, in fact, afraid of suffering bodily harm, and 
    • You acted on that fear. 

    These elements question what you actually perceived in the moment. That’s the subjective part of the equation.

    Objective Element: Reasonableness

    The law judges someone who acted in self-defense based on the reasonableness of their conduct. In other words, the law asks whether your response to the threat was objectively reasonable to the average person. Would the average, reasonable person have feared for their safety in the same or similar circumstances? And would they have acted in a similar way? This brings us to the next element. 

    Proportionality: Level of Force

    The next part of the law of self-defense is proportionality. In other words, the law asks whether your response is proportional to the threat posed. When defending against an attack, you can only use the amount of force you believe is necessary and reasonable to prevent bodily harm. 

    Next, the law asks whether a reasonable person in your exact circumstances would have used the same level of force in response to the threat as you did. This is the rule of proportionality. You should only use the least amount of force necessary to stop harm to yourself, and you cannot respond to non-lethal force with lethal force. For instance, absent extraordinary circumstances, you cannot shoot someone who is only threatening to slap you. The law would not justify using deadly force in those circumstances. 

    Also, it’s important to note that New Mexico law allows you to defend yourself against a police officer, but only if the officer uses excessive force against you.

    Stand Your Ground

    Additionally, New Mexico law does not require you to retreat first before resorting to self-defense. Some states require you to find a safe avenue of retreat before defending yourself. New Mexico law does not. However, New Mexico has no pure “stand your ground” statute like other states. 

    What Is the First Aggressor Rule?

    Your trial judge does not have to give a self-defense instruction if you instigated the altercation or were the “first aggressor.” You have no privilege to defend yourself if you start the fight or strike first without sufficient provocation. 

    However, every rule has exceptions, and an experienced lawyer can better examine your case and inform you of your possible defenses in such situations. 

    Trust the New Mexico Criminal Law Offices to Protect Your Right to Self-Defense

    Contacting one of our dedicated criminal defense lawyers can help you preserve your self-defense claim. Our skilled and experienced defense lawyers know how to present evidence that you acted in self-defense at your assault trial. Your lawyer can show evidence of self-defense through witness testimony, physical evidence, or having you testify to what happened. 

    Since 1997 we have vigorously defended the rights of those who come to us after getting into trouble with the law. We give each client our full attention and thoroughly investigate your case with an eye toward your unique circumstances. That’s the only way to give you the best chance of beating your charges. Contact us today for a free consultation.