Self-defense in New York and Italy

In New York State the law of self-defense is legally referred to as “justification.” When someone raises such a defense, he is not saying that he did not commit the act but that he was justified in so doing. Although New York State is one of the strictest in applying  self-defense statutes, to an Italian, New York would probably come across as being extremely liberal in its treatment of victims that are forced to shoot and sometimes kill burglars or assailants that have broken into their homes or trespassed on their property to commit any number of crimes. In New York, to justify the use of deadly physical force you must believe that deadly physical force is being used on you and such belief must be objectively reasonable. You may not use deadly physical force if you can retreat to complete safety (hence no “stand your ground rules” apply in New York). If someone is in a situation where his attacker is running after him with a knife, but he is in a car, under New York law, such a person is guilty of murder if he gets out of his car and kills his attacker when he could just as easily and safely driven away. The duty to retreat, however, ceases to apply if a person is in his home. This is sometimes called the “castle doctrine”. The doctrine stems from the idea that a man’s home is his castle (and refuge of last resort) and a man should be able to defend it if necessary without having to runaway.

What makes the difference between US self-defense statutes and Italian rules of “justification” lies not so much in the substantive rules but in the procedural rules, including the application and interpretation thereof by the courts:

In all systems and jurisdictions, including Italy’s, self-defense is an affirmative defense, which means that the claimant does not intend to dispute the fact committed but that such fact was justified or “scriminato” by or under the circumstances.

Generally speaking in most US jurisdictions, in order to claim such a defense, a defendant must make a case and present hard evidence. Unlike the prosecution, however, a defendant’s burden of proof is lower. While the prosecution must prove guilt beyond a reasonable doubt, defendants are held to lower standards. For an affirmative defense to succeed in New York, a preponderance – meaning at least 50% of the evidence raised by a defendant during trial must convincingly substantiate his claim of self-defense in the eyes of the court.

In a civil law jurisdiction like Italy, if the substantive rules of self-defense are similar to those found in common law jurisdictions, the rules of procedure differ from the above, despite Italy’s adoption, “adaptation” and introduction of common law adversarial rules in its criminal procedures almost thirty years ago (1988).

Probably the single most important difference between Italy’s modern-day adversarial proceedings and common law trials lies in Italy’s rules of evidence and the burden of proof. Italian rules of evidence are strictly construed and rigorously applied equally to both the prosecution and the defense. There is little or no shifting in the burden of proof during the course of an Italian trial as happens in common law jurisdictions. And so, under Italian “adversarial” rules of criminal procedure, defendants are not held to lower standards but to the same and equal standards of the prosecution. Why? Probably because of a misconception from “inquisitorial” days (and what provided in the Italian Constitution) that for a trial to be “fair and equal under the law” both sides must be held to the same rules of strict construction, interpretation and application, the mindset being, “what is good for the goose is good for the gander”. And so it is that Italian defendants are put on an equal footing with Italian public prosecutors who are judges chosen from among other colleagues to carry out the functions of prosecution. That, and Italy’s constitutionally guaranteed system of multiple appeals (naturally by either of our two “equal” parties) before a sentence can be said to be final (or res judicata) helps explains why Italian trials can seemingly last forever.