Prosecution Strategy in Self-Defense Cases: The “Common Man” / Reasonable Person Approach
1. Understanding Self-Defense Law in Montana
Montana self-defense law generally allows a person to use force including deadly force, only if:
They reasonably believe such force is necessary to prevent imminent death or serious bodily harm to themselves or others; and
They did not provoke or instigate the confrontation; and
They have no reasonable means of retreat or avoidance (outside the home), though Montana is a stand-your-ground/castle doctrine state in many situations. https://legalclarity.org/montanas-stand-your-ground-law-use-of-force-guidelines
Under Montana law (MCA §§ 45-3-101 et seq.), a defendant bears the burden of production (raising evidence) for self-defense, but the burden of proof remains with the State to prove beyond a reasonable doubt that the defendant’s use of force was not justified. https://legalclarity.org/montanas-stand-your-ground-law-use-of-force-guidelines
However, even with “stand your ground” rules, prosecutors still have powerful ways to attack a self-defense claim, including the “common man” approach.
2. What Is the “Common Man” / Reasonable Person Approach?
In prosecuting self-defense cases, the State often frames the issue as:
Would a reasonable ordinary person (a “common man”) without specialized combat or weapons training, have acted as the defendant did under the same circumstances?
This approach focuses on objective reasonableness, not just the defendant’s subjective fear. Two key parts:
A. Objective Reasonableness
Prosecutors will argue that:
The defendant’s belief of danger was not reasonable from the perspective of an average person in the same situation.
The defendant had alternatives (retreat, avoidance, calling police, non-lethal de-escalation).
The defendant used excessive force relative to the threat.
This mirrors standard jury instructions: jurors must consider what a “reasonable person” would have done. If an average person would not have believed deadly force was necessary, the jury can reject the self-defense claim.
B. Focus on Avoidability and Alternatives
Prosecutors emphasize whether the defendant could have avoided the confrontation, especially outside the home:
Could the defendant have left?
Could they have retreated safely?
Did they seek out the danger (e.g., cutting through a dark alley at night)?
If yes, they argue the defendant chose confrontation, not survival, undermining self-defense.
3. Prosecutors’ Use of the “Common Man” Strategy in Practice
A. Key Arguments Prosecutors Use
1. The Threat Was Not Immediate or Severe Enough
Prosecutors will highlight where:
No weapon was brandished by the victim;
The threat was verbal or indirect;
Defendant overreacted.
In such cases, prosecutors argue a reasonable person would not have perceived an imminent threat justifying deadly force.
2. Defendant’s Actions Show Planning or Avoidable Behavior
Prosecutors ask jurors to consider:
Did the defendant go out of their way to encounter trouble?
Did they arm themselves and seek confrontation?
Did they have a safe avenue of retreat or avoidance?
For example, cutting through a dark alley or parking garage late at night when safer routes exist could be presented as indicative of voluntary exposure to danger, behavior the “common man” would not undertake.
3. Defendant’s Behavior After the Use of Force
Actions like:
Fleeing the scene,
Lying about circumstances,
Destroying evidence,
Inconsistent statements,
are used to undermine genuine fear and reasonableness claims.
4. When the Prosecution Argues You Did Not Have to Kill
Even in states like Montana with “stand your ground” or “castle doctrine” protections, killers can still be convicted if prosecutors prove:
A. There Was No Imminent Threat
The threat must be near, immediate, and reasonable under the circumstances.
If evidence shows the defendant:
could have retreated,
provoked the incident,
escalated violence, or
misinterpreted harmless behavior,
the State argues deadly force was not justified.
B. Excessive and Unreasonable Force
Killing someone when:
the victim was unarmed,
the danger was minimal,
or non-fatal force would suffice,
are classic bases for prosecutors to argue murder or manslaughter.
C. Defendant’s Conduct Shows Improper Motive
Pre-planning or provoking a fight can show:
the defendant sought a fight;
the killing was not out of genuine fear;
the defendant’s fear was not reasonable.
This is the heart of the “common man” attack.
5. Montana Self-Defense and Stand-Your-Ground / Castle Doctrine Cases
Montana has both successful and unsuccessful self-defense claims.
A. Unsuccessful Self-Defense Claims
1. Markus Kaarma – Killing of Diren Dede (Missoula, MT)
A well-known Montana case:
Defendant shot and killed 17-year-old Diren Dede, an exchange student in Kaarma’s garage, claiming self-defense under castle doctrine.
Prosecutors argued Kaarma set a trap to lure intruders, creating danger rather than responding to threat.
The jury rejected self-defense and found him guilty of deliberate homicide. https://www.mtpr.org/montana-news/2014-12-20/montana-shooter-found-guilty-despite-states-castle-doctrine
Why it failed:
Evidence suggested pre-planning rather than immediate threat.
A reasonable person would not expect imminent death from a beer thief alone.
Setting up a lure undermined the “reasonable fear” element.
This case shows that even inside the “castle,” creating or inviting danger can negate justification.
2. Heavygun v. State (2016 MT Decision)*
Defendant stabbed another man with a knife during an altercation and claimed self-defense.
The jury convicted Heavygun of deliberate homicide among other charges.
The evidence (bloodstain placement, accounts) contradicted his claim that the victim left and returned walking normally. https://lawofselfdefense.com/law_case/heavygun-v-state-2016-mt-66-mt-sup-ct-2016/?utm
Takeaway: If evidence contradicts the defendant’s narrative, jurors may conclude the perceived threat was not reasonable.
B. Successful Self-Defense Claims (Stand-Your-Ground / Castle Doctrine)
1. Traditional Castle Doctrine Application and Home Intruder Cases
Montana’s castle doctrine generally allows lethal force in defense of one’s home without retreat. One reported instance:
Brice Harper case: Harper shot Dan Fredenberg, who confronted him in his garage over a domestic dispute.
Prosecutors declined to file charges under castle doctrine because use of lethal force was deemed justified. https://jonathanturley.org/2012/10/24/montana-man-cleared-by-castle-doctrine-law-after-shooting-unarmed-husband-who-confronted-him-about-an-affair-with-his-wife/?utm
Lesson: When the defendant is in his home and a reasonable person would fear serious harm, stand-your-ground/castle doctrine can succeed.
2. Stand-Your-Ground Outside the Home
Prosecutors in other cases have declined to charge or dismissed charges citing stand-your-ground principles, especially when the threat is clear and imminent and the defendant had no opportunity to safely withdraw, as in reported bar-lot shootings where multiple aggressors posed clear danger. https://www.wsj.com/us-news/homicide-standground-law-crime-f25bd211?utm
6. Jury Instructions and Prosecutor Strategy
A. Jury Instructions on Reasonableness
Montana courts instruct juries that:
Self-defense requires reasonable belief of imminent danger.
The defendant must not have provoked the encounter.
Use of force must be proportional.
The prosecutor emphasizes reasonableness from the perspective of a “common man.” If jurors think a reasonable person would not have acted like the defendant, they are instructed to reject the defense.
B. Burden of Proof
Even under stand-your-ground laws, once self-defense is raised, the State must prove beyond a reasonable doubt that:
force wasn’t justified, or
the defendant wasn’t acting reasonably as a common person would.
This becomes the prosecutor’s focus, undermining reasonableness and necessity.
7. Practical Implications for Defendants
Even with stand-your-ground protections, a defendant who:
enters risky situations intentionally,
carries weapons expecting conflict,
provokes or escalates violence,
leaves safe alternatives unused,
is more likely to have the jury reject self-defense under the “common man” standard.
Key Warning Signs Prosecutors Use
Lack of imminent threat;
Defendant had safe avenues of retreat;
Excessive force used;
Evidence contradicts fear claim;
Prior planning or confrontation seeking.
8. In Conclusion
Prosecutors use the “common man” approach to evaluate self-defense claims not by asking what the defendant thought, but what a reasonable person without specialized training would do. Even in “stand your ground” jurisdictions like Montana, this objective test can defeat self-defense when:
threats were not immediate or severe,
defendant created the danger,
alternatives existed, or
force was disproportionate.
Real Montana cases, like the Kaarma conviction and Heavygun conviction show that courts and juries will reject self-defense when reasonableness fails, even under castle doctrine. Meanwhile, cases like Harper’s demonstrate that clear, immediate threats inside one’s home can yield acquittals or declined prosecutions.
Remember when seconds count and help is minutes away, you are your own first responder.
Stay safe my friends.
Pastor Bart Goldbar
Sensei | Instructor
Goldbar Defense LLC
