Also known as: original aggressors · first aggressor
Written by attorneys — see sources 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.
In the early morning hours of August 7, 1981, Janice Leidholm stabbed her husband Chester Leidholm to death at their farm home near Washburn in McLean County, North Dakota. The couple had attended a gun club party in Washburn the evening before where both consumed large amounts of alcohol. An argument developed during the return trip to the farm and continued after they arrived home just after midnight, with Chester shouting and Janice crying. During the fighting Janice attempted to telephone Deputy Sheriff Dave Vollan but Chester prevented the call by shoving her away and pushing her down. The argument moved outside where Chester repeatedly pushed Janice to the ground each time she tried to rise. After the couple re-entered the home and went to bed, Janice waited until Chester fell asleep, retrieved a butcher knife from the kitchen, and stabbed him, causing his death from shock and loss of blood within minutes. Janice Leidholm was charged with murder. A McLean County jury found her guilty of manslaughter and the court sentenced her to five years' imprisonment in the State Penitentiary with three years suspended. She appealed the judgment of conviction. At trial the State introduced testimony describing the couple's history of alcohol abuse and violence. A Breathalyzer test result showed Janice's blood-alcohol content at .17, and a blood sample analysis showed Chester's blood-alcohol content at .23. Expert testimony was presented on battered woman syndrome and Janice offered a proposed jury instruction addressing that condition. Before trial she moved for a change of venue citing local newspaper coverage and renewed the motion after voir dire; both motions were denied. She also moved for judgment of acquittal after the State's case in chief, relying on notes from interviews conducted by Dr. Thakor that were admitted as State's Exhibit 17. The trial court instructed the jury on self-defense by directing it to apply the standard of a reasonably prudent person regardless of sex. It refused to give the proposed battered woman syndrome instruction, included language on the duty to retreat from a dwelling, and instructed the jury on manslaughter as a lesser included offense of murder.
View caseThe 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.
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.
Supporting sources
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.
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.
Supporting sources