When someone is charged with murder in Illinois after claiming self-defense, the legal question is not always simply whether the person acted in self-defense or committed first degree murder. Illinois law recognizes an important middle ground: second degree murder based on an unreasonable belief in the need for self-defense, sometimes referred to as “imperfect self-defense.”
The distinction can be critical. A successful claim of lawful self-defense can result in an acquittal. But even when the prosecution convinces the jury that the defendant’s belief in the need to use deadly force was unreasonable, the circumstances may reduce what otherwise would constitute first degree murder to second degree murder.
Understanding this distinction requires understanding how Illinois defines self-defense and how the affirmative defense interacts with the second degree murder statute.
Self-Defense Under Illinois Law
Illinois recognizes self-defense under 720 ILCS 5/7-1.
A person may use force against another when he reasonably believes that force is necessary to defend himself or another person against the other’s imminent use of unlawful force.
The standard becomes more demanding when deadly force is used. Deadly force—or force likely to cause death or great bodily harm—is justified only when the person reasonably believes it is necessary to prevent:
- imminent death or great bodily harm to himself or another; or
- the commission of a forcible felony.
Illinois courts generally identify six considerations associated with a claim of self-defense: force was threatened against the defendant; the defendant was not the aggressor; the danger was imminent; the threatened force was unlawful; the defendant actually believed the danger required the force used; and that belief was objectively reasonable. (Illinois General Assembly.)
This means that self-defense contains both a subjective and an objective component.
The defendant must actually believe that the use of force is necessary. But that belief must also be reasonable under the circumstances.
That distinction becomes extraordinarily important in a murder prosecution.
What Happens Once Self-Defense Is Raised?
Self-defense is an affirmative defense, but that does not mean the defendant carries the ultimate burden of disproving murder.
Once sufficient evidence of self-defense has been introduced, the State must prove beyond a reasonable doubt not only the elements of first degree murder, but also that the defendant was not justified in using the force at issue.
Illinois first degree murder generally requires the State to establish that a defendant killed another person without lawful justification and possessed one of the mental states specified in 720 ILCS 5/9-1(a). (Illinois General Assembly.
The self-defense issue therefore becomes part of the State’s burden once it has been properly raised.
But defeating complete self-defense does not necessarily end the analysis.
That is where second degree murder becomes important.
The Connection Between Self-Defense and Second Degree Murder
Under 720 ILCS 5/9-2(a)(2), second degree murder may exist when a defendant commits what otherwise constitutes first degree murder but:
believes the circumstances to be such that, if they existed, would justify or exonerate the killing under Illinois justification law, but that belief is unreasonable.
In practical terms, consider three possible conclusions a jury could reach.
First: The defendant’s belief was reasonable.
The defendant actually believed deadly force was necessary, and that belief was objectively reasonable under the circumstances.
The killing may be justified as self-defense, resulting in not guilty.
Second: The defendant’s belief existed, but it was unreasonable.
The defendant genuinely believed deadly force was necessary, but the jury concludes that belief was objectively unreasonable.
That can constitute second degree murder.
Third: The defendant did not act under a genuine belief that deadly force was necessary.
If the State proves the elements of first degree murder and defeats the self-defense claim, and the defendant fails to establish the mitigating circumstance required for second degree murder, the result may be first degree murder.
Illinois courts have expressly recognized these three possible outcomes when self-defense and second degree murder are placed before the factfinder. (Illinois Courts.
“Perfect” Versus “Imperfect” Self-Defense
The easiest way to understand the distinction is through the concepts sometimes described as perfect and imperfect self-defense.
Perfect self-defense means:
“I believed deadly force was necessary, and my belief was reasonable.”
If the evidence establishes lawful justification, the defendant is not guilty of murder.
Imperfect self-defense essentially means:
“I genuinely believed deadly force was necessary, but my belief was unreasonable.”
The second situation does not completely excuse the killing. Instead, Illinois law treats the unreasonable belief as a mitigating circumstance that can reduce first degree murder to second degree murder. Illinois decisions have specifically described this form of second degree murder as “imperfect self-defense.” (Illinois Courts.
The difference between the two can turn on a remarkably fact-intensive determination: Was the defendant’s belief reasonable?
An Example
Consider a confrontation in which one person aggressively approaches another during an escalating dispute.
Suppose the defendant knows that the other person has previously carried a firearm and believes that person is reaching toward his waistband for a gun. The defendant shoots and kills him.
No gun is ultimately found.
The absence of a gun does not automatically defeat self-defense. Illinois self-defense law focuses on what the defendant reasonably believed under the circumstances, not simply what is discovered after the confrontation.
If the jury concludes that the defendant genuinely and reasonably believed he faced imminent death or great bodily harm, the shooting may constitute lawful self-defense.
But suppose the jury believes the defendant genuinely feared that the other person was reaching for a weapon while also concluding that the surrounding circumstances did not reasonably support that conclusion.
That finding can place the case squarely within second degree murder based upon an unreasonable belief in justification.
The distinction is therefore not necessarily between whether the defendant was “telling the truth” or “lying.” A jury can believe that the defendant was genuinely afraid and nevertheless conclude that his fear did not objectively justify the degree of force he used.
The Burdens of Proof Are Particularly Important
Illinois law creates an unusual allocation of burdens in these cases.
The State retains the burden of proving the elements of first degree murder beyond a reasonable doubt. When self-defense is appropriately raised, the State also bears the burden of proving beyond a reasonable doubt the absence of circumstances justifying the killing.
But second degree murder operates differently.
Under 720 ILCS 5/9-2(c), once evidence of a statutory mitigating factor has been presented, the defendant bears the burden of proving that mitigating factor by a preponderance of the evidence. (Illinois General Assembly.
Thus, the defendant is not required to prove his innocence. The State still must establish first degree murder and defeat lawful self-defense beyond a reasonable doubt. But if the defendant seeks a finding of second degree murder based on an unreasonable belief in justification, the mitigating factor must be established by a preponderance of the evidence.
The Illinois Supreme Court has explained the interaction between these burdens in People v. Jeffries, 164 Ill. 2d 104 (1995). When the evidence supports the issues of self-defense and second degree murder, the factfinder can ultimately conclude that the defendant was justified and therefore not guilty, that the defendant possessed an unreasonable belief supporting second degree murder, or that no justification or mitigating circumstance existed and the defendant is guilty of first degree murder. (Illinois Courts.
Why the Jury Instructions Can Be Critical
In a murder prosecution involving self-defense, jury instructions can become one of the most important battlegrounds in the case.
Illinois courts have recognized that when evidence supports a defendant’s subjective belief that the use of force was necessary, the evidence may warrant instructions addressing both self-defense and second degree murder.
That matters because a defendant should not necessarily be forced into an all-or-nothing choice between complete acquittal and first degree murder merely because his primary defense is that the shooting was entirely justified.
The defense can present its strongest evidence of lawful self-defense while the jury determines whether the evidence establishes complete justification, an unreasonable belief in justification, or no justification at all. (Illinois Courts.
Second Degree Murder Is Not Simply a “Lesser” Killing
Another important point is that second degree murder does not mean the State failed to prove the mental state required for murder.
Under Illinois law, the elements of first and second degree murder are closely connected. Second degree murder requires conduct that otherwise satisfies first degree murder under sections 9-1(a)(1) or (a)(2), together with one of the statutory mitigating circumstances. (Illinois General Assembly.
In an imperfect-self-defense case, the mitigating circumstance is the defendant’s genuine but unreasonable belief in circumstances that would have justified the killing.
This distinction can dramatically change the sentencing exposure.
Second degree murder is classified as a Class 1 felony under Illinois law. (Illinois General Assembly) First degree murder carries vastly greater potential penalties, including substantial sentencing enhancements in cases involving firearms. The difference between the two findings can therefore represent decades of imprisonment.
Why Self-Defense Murder Cases Require Careful Investigation
Whether a person’s belief was reasonable cannot ordinarily be determined from one isolated fact.
A strong self-defense investigation may require examination of the entire confrontation, including surveillance video, cellphone video, 911 recordings, eyewitness accounts, forensic evidence, firearm evidence, injuries to the parties, the physical environment, the sequence and timing of events, statements made immediately before the confrontation, and admissible evidence concerning prior interactions between the individuals.
The precise seconds before deadly force was used can become the most important part of the case.
The prosecution may characterize a defendant’s conduct as retaliation, anger, or aggression. The defense may contend that those same actions must be evaluated from the perspective of a person confronted with what he genuinely perceived as an immediate threat of death or serious bodily harm.
Ultimately, the distinction between first degree murder, second degree murder, and lawful self-defense can turn on what the defendant perceived—and whether the jury considers that perception reasonable.
Charged With Murder After Acting in Self-Defense?
A homicide investigation involving self-defense presents issues that are substantially different from an ordinary criminal case. Statements made during the first hours of the investigation, physical evidence from the scene, surveillance footage, witness accounts, forensic evidence, and the defendant’s explanation of why force was necessary can significantly affect how the case is ultimately charged and defended.
At Pissetzky Law LLC, we defend individuals accused of serious violent crimes, including first degree murder and other homicide offenses, in Chicago, Cook County, Lake County, DuPage County, Will County, and throughout Illinois, and in complex criminal cases nationwide.
If you or a family member is under investigation or has been charged with murder after an incident involving self-defense, obtaining experienced criminal defense counsel as early as possible can be critical.