§703-310 Provisions generally applicable to
justification. (1) When the actor believes that the use of force upon or
toward the person of another is necessary for any of the purposes for which
such belief would establish a justification under sections 703-303 to 703-309
but the actor is reckless or negligent in having such belief or in acquiring or
failing to acquire any knowledge or belief which is material to the
justifiability of the actor's use of force, the justification afforded by those
sections is unavailable in a prosecution for an offense for which recklessness
or negligence, as the case may be, suffices to establish culpability.
(2) When the actor is justified under sections
703-303 to 703-309 in using force upon or toward the person of another but the
actor recklessly or negligently injures or creates a risk of injury to innocent
persons, the justification afforded by those sections is unavailable in a
prosecution for such recklessness or negligence toward innocent persons. [L
1972, c 9, pt of §1; gen ch 1993]
Cross References
Definitions of "negligently" and
"recklessly", see §702-206.
COMMENTARY ON §703-310
[The Proposed Draft of the Penal Code employed a subjective
standard for justification. As mentioned previously and in the Supplemental
Commentary hereafter, the legislature introduced an objective or
"reasonable man" standard. The following commentary is based on the
Proposed Draft. The Supplemental Commentary indicates that §703-310 may be
contrary to the legislature's actual intent.]
Subsection (1) states that, where the actor is reckless or
negligent in forming a belief about the existence of facts which would
establish a justification for the actor's conduct, the actor does not have a
defense of justification for any crime as to which recklessness or negligence
suffices to establish culpability. This rule seems to be required in light of
the Code's subjective standards of justification, which have led to the
omission of the requirement that the actor's belief be reasonable.
Subsection (2) denies the defense of justification in cases
in which the actor negligently or recklessly injures or creates a risk of
injury to innocent persons. In such cases the actor may be prosecuted for a
crime involving negligence or recklessness, as the case may be.
SUPPLEMENTAL COMMENTARY ON §703-310
As mentioned in the Supplemental Commentary on §§703-300 and
302, the legislature introduced the "reasonable man standard" or
objective standard in making a determination of whether a defense of
justification is available. This being the case, it would appear that, where
the defendant has been negligent in believing the use of force to be necessary,
the defendant loses the defense of justification for all related crimes,
including those which require intent, knowledge, and recklessness, as well as
negligence, to establish culpability. Thus, §703-310, which was consistent
with the principles of chapter 703 as originally set forth in the Proposed
Draft, now appears contrary to the legislature's intent in this area.
Notes of Decisions
Cited in
20
cases (
6 in the last 5 years), 1978–2025 · leading case:
State v. Culkin, 35 P.3d 233 (Haw. 2001).
State v. Culkin, 35 P.3d 233 (Haw. 2001).
· cites it 16× “(1) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such a belief would establish a justification under sections 703-303 to 703-309 but the actor is reckless or negligent in having such belief or…”
State v. Nupeiset, 977 P.2d 183 (Haw. App. 1999).
· cites it 21× “The defense of defense of others is subject to a further limitation stated in HRS § 703-310 (1993) for reckless or negligent knowledge or conduct 16 of the actor.”
State v. Augustin, 63 P.3d 1097 (Haw. 2002).
· cites it 6× “) HRS § 703-305 (1993), governing the defense of use of force for the protection of others, similarly provides as follows: (1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a…”
State v. Van Dyke, 69 P.3d 88 (Haw. 2003).
· cites it 6× “See Commentary on HRS § 703-310 (“[Wjhere the actor is reckless or *386 negligent in forming a belief about the existence of facts which would establish a justification for the actor’s conduct, the actor does not have a defense of justification for any crime as to which…”
State v. McNulty, 588 P.2d 438 (Haw. 1978).
· cites it 4× “Appellant argues that his trial counsel was ignorant of the fact that one who had an actual, although unreasonable, belief that use of deadly force was necessary in self-defense could not be convicted of murder under HRS § 703-310 (1976). However, this proposition is far from…”
State v. Mark, 231 P.3d 478 (Haw. 2010).
· cites it 3× “The parties have not argued that HRS § 703-310, which limits the defense of others where the defendant has a reckless or negligent belief or engages in reckless or negligent conduct, is at issue in this case.”
State v. Betts, 514 P.3d 341 (Kan. 2022).
“11 § 470(b) (self-defense justification "unavailable in a prosecution for an offense involving recklessness or negligence towards innocent persons"); Haw. Rev. Stat. Ann. § 703-310 (2) (self-defense justification unavailable "for such recklessness or negligence toward innocent…”
State v. Tagaro, 757 P.2d 1175 (Haw. App. 1987).
· cites it 4× “Commentary to HRS § 703-310. The reason for the inconsistency is that the proposed draft of the Penal Code submitted to the legislature provided for a subjective standard for justification, but the legislature changed the standard to the reasonable man standard of § 703-300(1).”
State v. Pavao, 913 P.2d 553 (Haw. App. 1996).
· cites it 3× “” Supplemental Commentary on HRS § 703-310 (1993). However, as HRS § 703-305 states, the attendant circumstances must be viewed from a subjective point of view, that is, “as the [defendant] believes them to be[.”
State v. Padilla, 164 P.3d 765 (Haw. App. 2007).
“(1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a third person when: (a) Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect…”
State v. Jhun, 927 P.2d 1355 (Haw. 1996).
“(1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a third person when: (a) Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect…”
State v. Jardine, 61 P.3d 514 (Haw. App. 2002).
· cites it 2× “Hawaii Revised Statutes (HRS) § 703-310 (1993) provides as follows: Provisions generally applicable to justification.”
— Haw. Rev. Stat. § 703-310(1) — 7 cases
State v. Nupeiset, 977 P.2d 183 (Haw. App. 1999).
“The defense of defense of others is subject to a further limitation stated in HRS § 703-310 (1993) for reckless or negligent knowledge or conduct 16 of the actor.”
State v. Augustin, 63 P.3d 1097 (Haw. 2002).
“) HRS § 703-305 (1993), governing the defense of use of force for the protection of others, similarly provides as follows: (1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a…”
State v. Van Dyke, 69 P.3d 88 (Haw. 2003).
“See Commentary on HRS § 703-310 (“[Wjhere the actor is reckless or *386 negligent in forming a belief about the existence of facts which would establish a justification for the actor’s conduct, the actor does not have a defense of justification for any crime as to which…”
State v. Tagaro, 757 P.2d 1175 (Haw. App. 1987).
“Commentary to HRS § 703-310. The reason for the inconsistency is that the proposed draft of the Penal Code submitted to the legislature provided for a subjective standard for justification, but the legislature changed the standard to the reasonable man standard of § 703-300(1).”
— Haw. Rev. Stat. § 703-310(2) — 1 case
State v. Nupeiset, 977 P.2d 183 (Haw. App. 1999).
“The defense of defense of others is subject to a further limitation stated in HRS § 703-310 (1993) for reckless or negligent knowledge or conduct 16 of the actor.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.