Self Defense and Affirmative Defenses under Indiana Law

If you have questions about Affirmative Legal Defenses in Indiana and want to speak to an Indianapolis Criminal Lawyer, please call me for a free consultation at 317-695-7700. I have personally defended thousands of cases, taught criminal law at the IU School of Law, am a top rated attorney, and have practiced criminal defense my entire career. Additional information about my office is available on the home page and the in the news page.

– “An affirmative defense admits all the elements of the crime but proves circumstances which excuse the defendant from culpability.” Melendez v. State, 511 N.E.2d 454, 457 (Ind. 1987).

Indiana Law Recognizes several statutory legal defenses, including:

IC § 35-41-3-1 – Legal authority

IC § 35-41-3-2 – Use of force to protect person or property

IC § 35-41-3-3 – Use of force relating to arrest or escape

IC § 35-41-3-5 – Intoxication

IC § 35-41-3-6 – Mental disease or defect

IC § 35-41-3-7 – Mistake of fact

IC § 35-41-3-8 – Duress

IC § 35-41-3-9 – Entrapment

IC § 35-41-3-10 – Abandonment

IC § 35-41-3-11 – Mental disease or defect; use of justifiable reasonable force

Necessity

IC § 35-41-3-1 – Legal authority

IC § 35-41-3-1 refers to the legal authority defense in Indiana. This defense allows a person to argue that their conduct was authorized or required by law, such that they did not commit a crime.

To assert this defense, the defendant must show that they reasonably believed that their conduct was authorized or required by law at the time it was committed. This belief must be based on a reasonable interpretation of the law, rather than a mistaken or incorrect interpretation.

If the defendant can show that their conduct was authorized or required by law, they will not be found guilty of the crime charged. However, if the prosecution can show that the defendant’s interpretation of the law was not reasonable, or that the defendant did not act in good faith, the defense will not be successful.

It’s important to note that the legal authority defense is not available in all cases. It typically applies to crimes that require a specific intent or knowledge element, such as fraud or embezzlement. It generally would not apply, for example, to a charge of assault or battery, as those crimes do not require any specific intent or knowledge.

Overall, the legal authority defense is a narrow defense that requires careful analysis of the specific circumstances of the case and the relevant law. To successfully raise the defense of legal authority, the defendant must show that they had a reasonable belief that they were acting with legal authority. This means that they must have been aware of the law or contract that gave them authority to act, and they must have believed that they were acting within the scope of that authority.

The defense of legal authority can be argued to defend against a range of charges. If you are facing criminal charges, it is important to speak with an experienced criminal defense attorney to discuss whether this defense may be available to you.

Examples of how the defense of legal authority could be argued include:

• A police officer who arrests someone for a crime that they did not commit may be able to raise the defense of legal authority if they had a reasonable belief that the person was committing a crime.
• A landlord who enters a tenant’s property without the tenant’s permission may be able to raise the defense of legal authority if they had a reasonable belief that they were authorized to do so, such as if they were responding to a noise complaint.
• A person who uses force to defend themselves from an attack may be able to raise the defense of legal authority if they had a reasonable belief that they were acting in self-defense.

IC § 35-41-3-2 – Use of force to protect person or property (self defense)

IC § 35-41-3-2 is a section of the Indiana Code that is commonly referred to as “self defense” but also includes “defense of others” and “defense of property.” The defense is based on the idea that a person is justified in using force if they reasonably believe that it is necessary to prevent harm to themselves, another person, or their property.

To successfully raise the defense of self-defense, the defendant must show that they had a reasonable belief that they were in imminent danger of harm. This means that they must have believed that they were about to be attacked, and that they had no other way to avoid the attack.

The defense of self-defense can be argued to justify the use of deadly force, but only if the defendant reasonably believes that they are in danger of death or serious bodily injury. The use of deadly force is not justified if the defendant could have avoided the attack by using less force.

The defense of self-defense is a complex one, and it is important to speak with an experienced criminal defense attorney to discuss whether this defense may be available to you.

Here are some examples of how the defense of self-defense could be argued:

• A person who is attacked by an armed robber may be able to use deadly force to defend themselves if they reasonably believe that they are in danger of death or serious bodily injury.
• A person who is attacked by a burglar may be able to use non-deadly force to defend their property, such as by hitting the burglar with a baseball bat.
• A person who is attacked by a dog may be able to use any force necessary to defend themselves, including deadly force if they reasonably believe that they are in danger of death or serious bodily injury.

The force used in self-defense or defense of property must be reasonable under the circumstances, meaning that it must be proportionate to the threat faced. For example, if someone is threatening you with a knife, it may be reasonable to use force to defend yourself, but it would not always be reasonable to use deadly force if the threat could be neutralized with less severe force.

It’s important to note that the law does not necessarily allow a person to use force in response to verbal threats or insults alone. Additionally, a person can sometimes not use force to defend themselves or their property if they were the initial aggressor in the situation.

If a person uses force to defend themselves or their property and is subsequently charged with a crime, they can assert the use of force to protect person or property as a defense. However, the burden of proof is on the defendant to show that their use of force was reasonable under the circumstances.

The Indiana self defense Indiana Pattern Jury Instruction is:

Instruction No. 10.03A.Use of Force to Protect Person.

It is an issue whether the Defendant acted in (self–defense) or (defense of another person).

A person may use reasonable force against another person to protect (himself/herself from what he/she) or (someone else) from what the Defendant reasonably believes to be the imminent use of unlawful force.

A person is justified in using deadly force, and does not have a duty to retreat, only if he/she reasonably believes that deadly force is necessary (to prevent serious bodily injury to himself/herself or a third person) or (to prevent the commission of a felony).

(However, a person may not use force if:

(he/she is committing a crime that is directly and immediately connected to the (confrontation) (use a descriptive term based on evidence).

(he/she is escaping after the commission of a crime that is directly and immediately connected to the (confrontation) (use a descriptive term based on evidence).)

(he/she provokes a fight with another person with intent to cause bodily injury to that person).

(he/she has willingly entered into a fight with another person or started the fight, unless he withdraws from the fight and communicates to the other person his intent to withdraw and the other person nevertheless continues or threatens to continue the fight).

The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self–defense.

“A person may use reasonable force against another person to protect someone else from what the Defendant reasonably believes to be the imminent use of unlawful force.  No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting a third person by reasonable means necessary. The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in defense of another person.” Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013).

– Generally, a defendant can not claim self defense where he is committing a seperate crime at the time of the confrontation and there is an immediate casual connection between the crime and confrontation.  Mayes v. State, 744 N.E.2d 390, 394 (ind. 2001). 

IC § 35-41-3-3 – Use of force relating to arrest or escape

IC § 35-41-3-3 is a section of the Indiana Code that defines the circumstances under which a person is justified in using force to effect an arrest or prevent an escape. The section states that a person is justified in using reasonable force against another person to effect an arrest or prevent the other person’s escape if:

• A felony has been committed; and
• There is probable cause to believe the other person committed that felony.

However, a person is not justified in using deadly force unless that force is justified under section 2 of this chapter. Section 2 of IC § 35-41-3-3 defines the circumstances under which a person is justified in using deadly force.

The use of force is a serious matter, and it is important to understand the legal implications of using force in Indiana. If you have any questions about the use of force, you should consult with an attorney.

Here are some additional things to keep in mind about IC § 35-41-3-3:

• The use of force must be reasonable. This means that the force used must be necessary to effect an arrest or prevent an escape, and it must not be excessive.
• The use of force must be proportional to the threat posed. This means that the force used must not be greater than is necessary to protect yourself or others from harm.
• The use of force must be used in good faith. This means that you must believe that you are justified in using force, and you must not use force with the intent to harm or injure someone.

If you are ever in a situation where you need to use force, it is important to remember these things. Using force can be a dangerous and unpredictable thing, so it is important to use it only as a last resort.

Remember that actual law enforcement officers may not be impressed with individuals who attempt to make citizens arrests.

IC § 35-41-3-6 – Mental disease or defect

IC § 35-41-3-6 is a section of the Indiana Code that defines the circumstances under which a person is not criminally responsible for their actions due to mental disease or defect. The section states that a person is not criminally responsible if, at the time of the crime, the person was suffering from a mental disease or defect that rendered them unable to appreciate the wrongfulness of their actions or to conform their actions to the law.

In order to successfully raise the insanity defense, the defendant must prove by a preponderance of the evidence that they were suffering from a mental disease or defect at the time of the crime. The defendant must also prove that the mental disease or defect rendered them unable to appreciate the wrongfulness of their actions or to conform their actions to the law.

The insanity defense is a complex legal defense, and it is important to consult with an Indiana criminal attorney if you are considering raising this defense. An Indiana criminal lawyer can help you understand the law and how it may apply to your case.

Here are some additional things to keep in mind about IC § 35-41-3-6:

• The mental disease or defect must be severe. This means that the mental disease or defect must have a significant impact on the person’s ability to think, reason, or control their behavior.
• The mental disease or defect must have existed at the time of the crime. This means that the person must have been suffering from the mental disease or defect at the time they committed the crime, not just at the time of their trial.
• The mental disease or defect must have caused the person to commit the crime. This means that the person would not have committed the crime if they had not been suffering from the mental disease or defect.

Remember that mere mental illness will generally not be enough for an acquittal.

IC § 35-41-3-5 – Intoxication

IC § 35-41-3-5 is a section of the Indiana Code that defines the circumstances under which intoxication can be argued as a defense to a criminal charge. The section states that intoxication is a defense to a criminal charge if the intoxication was involuntary and the person was not aware that the substance they were consuming could cause intoxication.

For example, if a person is drugged without their knowledge and then commits a crime while under the influence of the drug, the intoxication could be used as a defense to the criminal charge. However, if a person voluntarily consumes alcohol or drugs and then commits a crime, the intoxication cannot be used as a defense.

It is important to note that intoxication is not always a successful defense to a criminal charge. The court will consider all of the facts and circumstances of the case, including the severity of the intoxication, the nature of the crime, and the person’s intent, in determining whether or not to allow the intoxication defense.

IC § 35-41-3-7 – Mistake of fact

Indiana Code § 35-41-3-7, or the “Mistake of Fact” statute, is a criminal law defense that can be argued to excuse a person’s actions if they were reasonably mistaken about a fact that is material to the crime they are accused of committing. For example, if a person is accused of stealing a car, but they reasonably believed that the car was theirs, they may be able to use the mistake of fact defense to avoid being convicted.

To successfully raise the mistake of fact defense, a defendant must show that they were:

• Actually mistaken about a fact that is material to the crime they are accused of committing.
• Reasonably mistaken about that fact. This means that the defendant’s mistake was based on a reasonable belief, given the facts and circumstances known to them at the time.
• The mistake negates the culpability required for commission of the offense. This means that the defendant’s mistake prevented them from having the mental state required to commit the crime. For example, if a person is accused of murder, but they reasonably believed that the victim was already dead, they may be able to use the mistake of fact defense because they did not have the intent to kill.

The mistake of fact defense is a complex area of law, and it is important to consult with an Indiana criminal attorney if you are facing criminal charges and believe that you may be able to raise this defense.

IC § 35-41-3-8 – Duress

Indiana Code § 35-41-3-8, or the “Duress” statute, is a criminal law defense that can be argued to excuse a person’s actions if they were forced to commit a crime by the threat of imminent serious bodily injury to themselves or another person. For example, if a person is forced to rob a bank at gunpoint, they may be able to use the duress defense to avoid being convicted.

To successfully raise the duress defense, a defendant must show that they were:

• Forced to commit the crime. This means that the defendant did not have a free choice to act otherwise.
• By the threat of imminent serious bodily injury to themselves or another person. This means that the defendant had a reasonable belief that if they did not commit the crime, they or the other person would be seriously injured or killed.
• The duress was the only reason they committed the crime. This means that the defendant would not have committed the crime if they had not been forced to do so.

The duress defense is a complex area of law, and it is important to consult with an Indiana criminal attorney if you are facing criminal charges and believe that you may be able to raise this defense.

IC § 35-41-3-9 – Entrapment

Entrapment is a defense used in criminal cases where the defendant claims that they were induced or coerced by law enforcement officials to commit a crime that they would not have otherwise committed. In lay terms, entrapment is an argument that a person should not be convicted of a crime because they were induced or encouraged by a law enforcement officer to commit the crime.

Indiana has adopted the objective test for entrapment, which means that the defendant must show that they were induced to commit a crime that they would not have otherwise committed, and that the inducement was so significant that it created a substantial risk that the crime would be committed by someone who was not predisposed to commit it.

In Indiana, the entrapment defense is codified in Indiana Code § 35-41-3-9, cited above. The statute provides that it is a defense to a criminal charge that:

• The prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
• The person was not predisposed to commit the offense.

The statute provides that a person is not guilty of a crime if they committed the crime as a result of being induced or coerced by a law enforcement officer, or by someone acting at the direction of a law enforcement officer, to commit the offense, and the person’s conduct was a direct result of the inducement or coercion.

The first element of the entrapment defense requires the defendant to show that the law enforcement officer or their agent actually induced them to commit the crime. This can be done by showing that the officer or agent:

• Made promises or threats;
• Provided the defendant with the means to commit the crime;
• Repeatedly asked the defendant to commit the crime; or
• Otherwise pressured the defendant to commit the crime.

The second element of the entrapment defense requires the defendant to show that they were not predisposed to commit the crime. This can be done by showing that the defendant had no prior criminal history or that they had never expressed an interest in committing the crime before they were approached by the law enforcement officer or their agent.

The entrapment defense is an affirmative defense, which means that the defendant must raise it at trial. If the defendant does not raise the defense, the court will generally not consider the defense.

One of the most well-known cases is United States v. Russell, which was heard by the United States Supreme Court in 1973. In this case, the defendant was charged with manufacturing and distributing methamphetamine. The defendant argued that he had been entrapped by the government because an undercover agent had supplied him with the precursor chemicals necessary to manufacture the drug. The Supreme Court rejected the defendant’s entrapment defense, holding that the government’s conduct did not create a risk that an otherwise innocent person would have committed the crime.

Another notable case is State v. Chambers, which was decided by the Indiana Court of Appeals in 2008. In Chambers, the defendant was charged with dealing in cocaine. The defendant argued that he had been entrapped by a confidential informant who had repeatedly asked him to sell him drugs. The court rejected the defendant’s entrapment defense, holding that the defendant had already been involved in drug dealing prior to the informant’s involvement and that the informant’s actions did not create a substantial risk that an otherwise innocent person would have committed the crime.  However, in State v. Wilson, 585 N.E.2d 1000 (Ind. Ct. App. 1992), the Indiana Court of Appeals held that the defendant was entrapped when a police officer offered to sell him cocaine after the defendant had expressed no interest in buying drugs. In another case, State v. Smith, 615 N.E.2d 1241 (Ind. Ct. App. 1993), the Indiana Court of Appeals court held that the defendant was not entrapped where he agreed to sell drugs to a police officer after the officer had repeatedly asked him to do so.

IC § 35-41-3-10 – Abandonment

Indiana Code § 35-41-3-10, or the “Abandonment” statute, is a criminal law defense that can be argued to excuse a person’s actions if they voluntarily abandon their attempt to commit a crime before it is completed. For example, if a person starts to rob a store, but then changes their mind and leaves without taking anything, they may be able to use the abandonment defense to avoid being convicted.

To successfully raise the abandonment defense, a defendant must show that they:

• Voluntarily abandoned their attempt to commit the crime. This means that the defendant changed their mind and decided not to go through with the crime.
• Before the crime was completed. This means that the defendant must have stopped their actions before they actually committed the crime.

The abandonment defense is a complex area of law, and it is important to consult with an Indiana criminal attorney if you are facing criminal charges and believe that you may be able to raise this defense.

It is important to note that abandonment is not a defense to all crimes. For example, abandonment cannot be used as a defense to murder or other crimes that involve intentional harm to another person.  Additionally, in many cases where a Defendant wants to argue abandonment, the State will likely be able to move forward with an “attempt” prosecution.

IC § 35-41-3-11 – Mental disease or defect; use of justifiable reasonable force

Indiana Code § 35-41-3-11, or the “Mental Disease or Defect; Use of Justifiable Reasonable Force” statute, is a criminal law defense that can be argued to excuse a person’s actions if they were suffering from a mental disease or defect at the time of the crime and that mental disease or defect prevented them from appreciating the wrongfulness of their actions. For example, if a person with schizophrenia commits a crime because they are having a psychotic episode, they may be able to use the mental disease or defect defense to avoid being convicted.

To successfully raise the mental disease or defect defense, a defendant must show that they:

• Were suffering from a mental disease or defect at the time of the crime. This means that the defendant had a mental illness that affected their thinking, feeling, or behavior.
• That mental disease or defect prevented them from appreciating the wrongfulness of their actions. This means that the defendant did not understand that what they were doing was wrong.

The mental disease or defect defense is a complex area of law, and it is important to consult with an attorney if you are facing criminal charges and believe that you may be able to raise this defense. Remember that mental illness alone is generally not enough for an acuital.

Here are some examples of mental diseases or defects that could be used as a defense to a crime:

• Schizophrenia
• Bipolar disorder
• Major depressive disorder
• Post-traumatic stress disorder (PTSD)
• Intellectual disability

It is important to note that the mental disease or defect defense is not a get-out-of-jail-free card. Even if a defendant can show that they were suffering from a mental disease or defect at the time of the crime, they may still be convicted if the jury finds that they were not insane.

Necessity

In Indiana, the defense of necessity is a legal defense that can be argued to excuse a person’s actions if they committed a crime to avoid a greater harm.

To successfully raise the defense of necessity, a defendant must show that they:

• Committed the crime to avoid a greater harm. This means that the defendant’s actions were necessary to prevent a more serious harm from happening.
• There was no other reasonable way to avoid the greater harm. This means that the defendant could not have avoided the greater harm without breaking the law.
• The defendant acted reasonably under the circumstances. This means that the defendant’s actions were not reckless or irresponsible.

The defense of necessity is a complex area of law, and it is important to consult with an Indiana criminal attorney if you are facing criminal charges and believe that you may be able to raise this defense.

Here are some examples of situations where the defense of necessity might be applicable:

• A person trespasses on private property to escape a dangerous situation.
• A person breaks into a car to get a phone to call for help.
• A person uses deadly force to defend themselves from an attacker.

The elements of necessity were discussed by the Indiana Court of Appeals in Patton v. State, 760 N.E.2d 672 (Ind. App. 2002).  The defendant and his brother purchased clothing from a vendor. The clothing was defective. When the defendant and his brother asked for a refund, an altercation ensued. The vendor was attacking the defendants’s brother. The defendant shot the vendor twice in the legs.  The Court stated as follows:       

– “The following requirements have traditionally been held to be prerequisites in establishing a necessity defense:

(1) the act charged as criminal must have been done to prevent a significant evil;

(2) there must have been no adequate alternative to the commission of the act;

(3) the harm caused by the act must not be disproportionate to the harm avoided;

(4) the accused must entertain a good-faith belief that his act was necessary to prevent greater harm;

(5) such belief must be objectively reasonable under all the circumstances; and

(6) the accused must not have substantially contributed to the creation of the emergency.” Patton at 675.

– “In order to negate a claim of necessity, the State must disprove at least one element of the defense beyond a reasonable doubt. The State may refute a claim of the defense of necessity by direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-chief.” Patton at 676.

The Court found that the facts claimed by the Defendant were sufficient to justify a jury instruction on the defense of necessity.

If you are in need of an Indiana expungement attorney, Indiana criminal defense attorney, or forfeiture attorney, or have questions about the Indiana Expungement Law please call me for a free consultation at 317-695-7700. I have personally defended thousands of cases, teach criminal law at the IU School of Law, am a top rated attorney, and have practiced criminal defense my entire career. Additional information about my office is available on the home page and the in the news page.

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