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The Fine Points of Grammar Make All the Difference

What’s in a comma? For the defendant in the 2013 case of Talley v. State, the answer was “everything.”

Mr. Talley was charged with assault and battery as a result of a domestic altercation. According to the victim’s version of events, Mr. Talley—without provocation—stabbed the victim twice with something sharp. The victim responded by forcibly pushing him away and punching him in the face. An altercation then ensued in which the two men wrestled violently against a chain-link fence. According to Mr. Talley’s version of events, the stabbing had never happened. Rather, the victim had come at him first and had, without provocation, delivered the aforementioned punch to the face. The ensuing “wrestling match” was his attempt to defend himself against an attack. In other words, he was acting in self-defense.

At Mr. Talley’s trial, the only salient issue was whether or not the jury believed that he’d acted in self-defense. Thus, when all the evidence had been presented and the closing argument concluded, the judge turned to instruct the jury on the law of self-defense. The judge read the standard jury instructions, which explained the elements the jury needed to find had been proved if they believed the defendant should be acquitted for acting in self-defense. Typically, the law of self-defense allows only a proportionate response. If you’re threatened with deadly force, you can respond with deadly force (and in Florida, you have no duty to retreat from your attacker). If you’re threatened only with non-deadly force, you’re constrained to responding with non-deadly force. In principle, the Florida model jury instructions—which the judge read to the jury—are designed to reflect this distinction.

When Commas (and Good Legal Argument) Matter

However, it turns out that the model jury instructions—as printed and read aloud by the judge—have a grammatical ambiguity that might have suggested to the jury that self-defense was permissible only if one is threatened with deadly force. This is, as just discussed, not the case: one can respond to a non-deadly attack with a non-deadly retaliation. The model jury instructions, however, placed a critical comma after the phrase “including deadly force” so as to suggest that they were an inessential part of the sentence, which reads as follows: “If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony” (emphasis added).

The Florida Court of Appeals ruled that this added comma, which does not appear in the official statute books, might have confused the jury by suggesting that Mr. Talley had the right to stand his ground only if he reasonably believed it was necessary to prevent death or serious bodily harm. As such, they said Mr. Talley was entitled to a new trial in which the jury received proper instructions on the question of when self-defense was permissible. The entirety of the case, from Mr. Talley’s perspective, hinged on his right to respond with non-deadly force when he was not fearing death or great bodily harm.

Good Counsel Pays Attention to the Minute Details

This kind of exacting attention to detail—the realization that a tiny little comma can make the difference between guilty and not—is what you can expect from a great criminal defense attorney. If you’re facing assault and battery charges and believe you acted in self-defense, get a lawyer who will make sure the judge gets the instructions exactly right. Hire experienced assault and battery counsel like Fort Lauderdale based Kevin J. Kulik.

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