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BlogsPublications | May 26, 2016
1 minute read

Trial counsel is not ineffective for failing to request self-defense jury instruction when defense is not viable

It is well established that an attorney who employs a legitimate trial strategy as a result of reasonable professional judgement is not ineffective.  Now, the Michigan Supreme Court has clarified that where testimony at trial establishes that defendant was the initial aggressor, it is a legitimate trial strategy to decide that self-defense is not a viable defense theory and therefore not request the self-defense jury instruction.  In People v. Kusk, No. 153315, trial counsel instead opted to argue that the defendant was innocent of the charges of felonious assault and felony-firearm. This strategy proved at least partially successful as the defendant was acquitted of felonious assault and felony firearm, and instead was only convicted of misdemeanor of domestic assault.  The Court of Appeals opinion was reversed and the case was remanded to the trial court for further proceedings.