Also known as: original aggressors · first aggressor
Written by attorneys · grounded in primary & secondary sources — see below
A person who first employs or threatens unlawful force against another in a confrontation. The label triggers a duty to withdraw and give notice before regaining any right to self-defense and permits the prosecution in a homicide case to introduce evidence of the alleged victim's peacefulness once the defense claims the victim started the fight.
Jonah is charged with killing Owen after a dispute over irrigation. Jonah testifies that Owen raised a shovel and charged first. The prosecutor calls a neighbor who testifies that Owen was known in the community as calm and nonviolent. The court admits the testimony because Jonah's account placed Owen in the role of original aggressor.
Leidholm and her husband argue inside their home. She strikes him first with a knife during the fight. After he retreats to another room, she pursues and kills him. The court instructs the jury that because she was the original aggressor she could not claim self-defense without first withdrawing and notifying him of her intent to abandon the fight.
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The original aggressor must decline further combat in good faith, withdraw from the encounter, and give fair notice to the other party that the fight has been abandoned. Only after these steps may the original aggressor use reasonably necessary force if the other party continues the attack.
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In a homicide prosecution the prosecutor may offer evidence of the alleged victim's trait of peacefulness once the defense has introduced evidence that the victim was the first aggressor. The evidence rebuts the claim that the victim initiated the fatal confrontation.
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When the original aggressor commits only a simple assault and the victim responds with sudden deadly force, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. The duty to retreat arises only after a felonious or deadly initial assault.
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A person is not required to retreat from a dwelling unless that person was the original aggressor or is assailed by someone who also dwells there. The exception removes the usual retreat requirement only for non-aggressors inside the home.
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…provides, in part: “... (2) no person is required to retreat from his dwelling, or place of work, unless he was the original aggressor or is assailed by a person who he knows also dwells or works there. ” [Emphasis added.] Included within the trial court’s instruction to the jury on the law of self-defense was a…