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I have a friend who has been charged with criminal threatening. This kind of law is not supposed to be applied when a person makes a threat against someone attacking them. In NH the phraseology is as follows:

631:4:IV. A person who responds to a threat which would be considered by a reasonable person as likely to cause serious bodily injury or death to the person or to another by displaying a firearm or other means of self-defense with the intent to warn away the person making the threat shall not have committed a criminal act under this section.

The situation was that the accused had his house broken into by the police doing a "wellness check", and he was unaware that they were police and he threatened them verbally thinking they were intruders. The case would clearly seem to be covered by the exception to the law above.

So, the question is: when an exception like this is explicitly called out in the statute, is it still necessary for the case to be heard by jury, or can a judge simply dismiss the charges on the grounds of IV above?

If such a dismissal is moved by the defendant's attorney, does it need to be done at the arraignment or can it be done later, for example, in a pre-trial brief?

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    Nothing in the law precludes a criminal charge. Instead, it says that you will not be convicted if it is determined that the condition holds.
    – user6726
    Jan 21, 2020 at 21:15
  • @user6726 I understand that. I asking if there is statutory basis for the judge to dismiss the charges.
    – Cicero
    Jan 21, 2020 at 21:22
  • Wouldn't the question of whether the specific situation would be "considered by a reasonable person as likely to cause serious bodily injury or death to the person" likely be be a matter of disputed fact? If so, I do not see the logic of a dismissal before the alleged facts have been heard.
    – George White
    Jan 21, 2020 at 21:55
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    It generally would be the jury which decides if the condition is met or not..
    – Peteris
    Jan 21, 2020 at 22:16

1 Answer 1

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This is an example of an affirmative defense

In a criminal case, the prosecution must prove each and every element of the charge beyond a reasonable doubt. Where the law provides an exception that amounts to if you do X you commit a crime unless Y, the defense has to prove (to a lower burden) that Y happened.

An affirmative defense only kicks in if the prosecution has proved their case; which is usually because the defense concedes it if they are relying on an affirmative defense. An affirmative defense also must be introduced as soon as possible; preferably before charges are laid but, if not, at the commital/arraignment - courts take a dim view (up to excluding them entirely) if they are introduced late.

As to whether a case like this goes to trial that depends on the evidence available to support Y and the weight that the prosecutor and then the committal/arraignment judge/grand jury gives to that evidence. If they believe that a jury would believe it, they will not take it trial; if they don't, they will.

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  • On consideration, I am not sure that this is correct. Because clause IV is statutory, my understanding is that this is an example of a negating defense, not an affirmative defense. In other words, the burden of proof is on the prosecutor to show that clause IV does not apply.
    – Cicero
    Jan 30, 2020 at 8:53
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    @Cicero: A judge may decide to quash an indictment if undisputed facts of the case are such that no reasonable jury could fail to find that a reasonable person would have judged the "victim" as having threatened them, but many cases involving that section would involve questions of witness credibility, and thus have to be decided by a jury.
    – supercat
    Jan 25, 2021 at 16:36

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