Self-Defense: What's a Jury Got to Do with It?

Abstract

Is the trial court’s exclusion of self-defense evidence sustainable? This Article explores the answer to this question from several angles. It begins with a detailed discussion of Kirkpatrick and a relatively new Kansas statute, K.S.A. 21-3219, to explain the current relationship of self-defense and a forcible felony charge. Subsequently, the historical roots of self-defense are discussed and used to demonstrate that the determination of self-defense, as a fact-intensive issue, has been through time a question for the jury. Finally, the Article calls into question the constitutionality of the exclusion of evidence, based on the defendant’s right to a jury trial and his right to present his defense. Based on all of these considerations, this Article concludes that a defendant must be able to present evidence of self-defense to the jury, and the sweeping assertion in Kirkpatrick to the contrary is wrong.