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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: January 4, 2013

"ATTORNEY SAM, IS SELF-DEFENSE A STRONG DEFENSE IN A MASSACHUSETTS MURDER TRIAL?"

Over the last couple of days, we have been discussing the case of the first Boston area murder of 2013. Now, a whole four days have gone by and so naturally there have been more murders, or at least homicides, to follow that one. However, we found ourselves discussing the issue of self-defense.

In the New Year's day homicide, the weapon of choice was apparently a knife. At least, that is what apparently took the life of the young man who died. Of course, it would also appear that before any knife was involved, fists and the rest of the accompanying body were the weapons used.

Many people still misunderstand the theory of self-defense and when to raise it. For example, I have spoken to some clients who believe that when the police are conducting their initial criminal investigation, one can simply explain that the killing happened out of self-defense and the police may well shrug , walk away and close the case.

It seldom works that way.

This is why the subject of the investigation often makes a critical mistake that will come back to hunt him or her later. The investigating officer cajoles the target, making promises like "we only want to hear your side of the story" and "we know you're good person ... it must have been justified". The target then, rather than consulting an attorney, decides to go it alone and give their story to law-enforcement. The result? The target becomes the defendant.

"But Sam, what if it really was self-defense and the story given by the target lays that out pretty clearly?"

The police officer is there to gather evidence in a murder investigation. Most often, the police have already decided who they "like" for the role of "Defendant". This is particularly so in a case, like the one we were discussing, where the other party They know was involved in the fight is dead because of the fight. Whether or not the police officers truly believe that the killing was done in self-defense does not really matter. They are not there to play judge and jury. They are there to make the case. Therefore, they will end up arresting The target-turned -defendant and left the justice system take it from there.

Meanwhile, what the, now defendant, has done is to lock himself into a story that will be ripped apart in the upcoming year that follows.

"But why would a prosecutor do that? After all, isn't the prosecutor only trying to find the truth?"

Well, there are number of ways to answer that question. Let's just say that the prosecutor, as far as he or she is concerned, already knows the truth and the truth is that the defendant is guilty. Therefore any statement made to the contrary is, to say the least,"unreliable".

"So when should one start talking about self-defense?"

When one first consults a lawyer. Discussing it with the police before then is generally a huge mistake.

" 'Generally'?"

As any regular reader of this blog knows, there are no absolute rules in criminal justice. I can only tell you what is usually the fact. I base it on a great deal of experience. But, yes, there will always be exceptions.

After a lawyer is consulted, it is time to discuss and decide a strategy for the case. The next that is generally going to be seeking discovery from the government and investigating the case. In my opinion, it is best off to not announce the defense of self-defense until that investigation has shown that that is the only viable defense.

Remember, that just because the defendant claims self-defense, the prosecution is not simply going to pack up their collective briefcases and call it a day.

They are going to fight to convince the jury that it was not self-defense.

In determining issues relating to self-defense, several items should be considered. For example, was there an actual fight going on? With the odds evenly matched or was it several people against one? Did anybody use anything that could be considered a weapon? In, of course, what is one of the most important questions...who began the altercation.


They will undoubtably be witnesses called by the government to refute any claim of self defense. After all, if those witnesses did not exist, it would be no trial. The defense attorney should already know what they are going to say when they take the stand and be ready to cross examine them. This will be one of the major parts of the entire trial strategy no doubt.

I cannot give an entire lesson on the laws of self-defense here. However, one of the Issues which many people still seem to be unaware of is the amount of reasonable force that was used in the killing. For example, if Charlie Champ came after me with his bare hands and threw a punch at me, But I struck first punching him in the mouth, sending him sprawling down stairs and breaking his neck, I can claim that the amount of force that I used was reasonable and necessary in order to protect myself.

On the other hand, If wild Charlie was winding up to punch me I pulled out a bazooka and blasted him, or at least pieces of him, through a nearby window, I am going to have a difficult time showing that the amount of force that I used was reasonable and necessary.

Of course, I am first going to have to explain why a peaceloving attorney like me walks around with a bazooka all the time. That is not merely my offbeat, to be generous, sense of humor. In the New Year's Day killing, if it turns out that the Defendant actually had the knife at the time the fight began and then simply used it, one of the major issues he will have to deal with is why he was walking around with a knife.

The defense may claim that he simply carries around in case he is attacked because, three weeks ago, he was mugged by The Incredible Hulk. However, the prosecution will argue that he carried the knife around so that he would be armed when he got into fights.

So, what is the bottom line about considering and using the defense of self-defense?

Unless you are an extremely experienced criminal defense attorney, listen to the one you have hopefully just retained. Discuss the facts. Discussed the law. Participate.

But, in the meantime, have a great, safe and law-abiding weekend!