An Overt Act: In the Eye of the Beholder? by Philip Timmerman Like so many English words , the little word “overt” traces its lineage back through French to Latin. Its Roman great-grandfather, aperire, means to open, discover, or show, as does its nearer French relative, ou-vrir . “Overt” designates what is open, apparent, unhidden — what is there to be seen. As such, it has been employed to solve a thorny problem in the law of self-defense, which in Virginia says that you may kill your attacker if you reasonably fear that the attacker will imminently kill or gravely injure you or someone nearby, provided you did not help to instigate the confrontation. 1 In other words, you may kill your attacker if it is neces-sary to protect an innocent life. The problem is this: How can a jury determine whether it was necessary? How can we tell whether your fear was reasonable? Whether an attack was imminent? To answer these questions, a jury would need to read 32 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION not only your mind, but also, in a sense, the future, or what was the future at the time of the incident: Was an attack imminent? Was it about to happen? Such questions are be-yond the ken of any juror. What is needed is something a jury can see — something open, apparent, unhidden. This was not a problem for William Blackstone. Writing in the mid-eighteenth century, he stated: “the law requires, that the person, who kills another in his own defense, should have retreated as far as he convenient-ly or safely can, to avoid the violence of the assault, before he turns upon his assailant.” 2 Where the law required you to retreat “to the wall” before acting in self-defense, there could be no mistaking the necessity of the act. By the late nineteenth century in Virginia, however, the requirement to retreat had disappeared, at least in situations involving the threat of deadly force against an inno-cent. 3 In 1874, the Supreme Court of Virginia noted that “a man may repel force by force in defense of his person or property against one who manifestly endeavors, by violence or sur-prise to commit a known felony upon either, and in these cases is not obliged to retreat but www.vsb.org istock.com