Is It Required to Prove Self Defense?

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Frank Ettin said:
Frank said "What I'm getting at is that as a practical matter, except in an extraordinary case, the defense can't just sit back, let the evidence develop and at the end simply argue justification to the trier of fact based on whatever evidence was admitted."

You are not wrong, but what you are considering are the practical -- as distinguished from the legal -- aspects of trial strategy and tactics. Let me explain.

On the legal side, the defense considers the advantages and disadvantages the law and facts present. For example, the existence of witnesses, favorable and unfavorable; the existence of a special defense like Justification, and importantly, which side has the burden of proof regarding the defense, and what level of proof is required -- etc,etc.

On the practical side, the defense must consider practical, not legal, risks and rewards. Will the defendant come off as likable, unlikable? Will he have the ability to duel with the prosecutor during cross-examination, or will he destroy himself? Does he have something damaging in his background that, under the rules of evidence, can be exposed to the jury if he chooses to testify, but that can be precluded if he doesn't testify? Would "character" (reputation) witnesses be helpful, or turn out to be harmful? Etc., etc, etc.

Interviews of jurors after convictions show that often a defendant was winning, but then lost the winning case because he testified or presented unsuccessful witnesses, etc.

And there is yet more. Many criminal trial practitioners believe that when a defendant testifies or otherwise presents a case, a psychological (albeit not legal) change takes place -- that is, for the jury the burden of proof (psychologically, not legally) shifts from the full burden (and the very high level of "Proof Beyond a Reasonable Doubt") on the State, to a 50/50 apportionment of burden (at the lower level of "Preponderance of Evidence") between the contestants (like in a civil case).

In conclusion, a carefully thought out plan of defense of a criminal case may result in not putting on the defendant and/or additional evidence as a "defendant's case." To an observer such defense tactics may appear lazy, foolish, or otherwise harmful.

The process is more an art than a science.
(Imessed up the font/type here. Sorry.
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LawHoc said:
You are not wrong, but what you are considering are the practical -- as distinguished from the legal -- aspects of trial strategy and tactics....
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Yes, I was focusing on some of the practical issues.

LawHoc said:
... a carefully thought out plan of defense of a criminal case may result in not putting on the defendant and/or additional evidence as a "defendant's case." To an observer such defense tactics may appear lazy, foolish, or otherwise harmful.....
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Of course. Certainly self defense cases have been won without the testimony of the defendant. It worked for George Zimmerman.

But whether it would be possible in a particular case again depends on whether there is adequate evidence from other sources to effectively support inferences consistent with justification. If there is, the more tactically sound choice might well be not to put the defendant on the stand. But if there is not, perhaps the defendant will have no choice put but to testify -- if that's the only way to get evidence supporting justification in front of the jury.

Part of what we do here is provide the honest, private citizen who lawfully owns a gun to defend himself and his family with information on legal topics to help him understand how things can work if he is forced to resort to violence in defense of himself or his family. We hope the information will help him make good decisions that might facilitate both the successful protection of himself and his family and being able to survive the legal aftermath.

That said, I'm grateful for the detailed, technical information you've provided on New York use of force law. New York use of force law appears unique in some respects and in some ways "self defense friendly." Thank you.
 
You are correct. As a practical matter, sometimes a defendant who should not take the stand has no choice and must anyhow (no other way to present needed evidence or trigger needed law, e.g., SD). And sometimes a defendant who should take the stand, cannot. George Zimmerman is a good example of a defense decision to settle for what was available (e.g., a prior statement about which GZ could not be cross-examined, etc) and forego his testimony to avoid revelation of potentially counter-productive information and impressions. Such a determination involves an assessment as to whether the record will contain just enough, without the risk of adding more, to prevail. A fine-line decision, like threading a needle.
 
The distinction between standards of proof bears mention here given that some of the mentioned states have differing requirements.

I'll defer to Frank in this, but it's interesting that making a self defense claim can change the required standard of proof and on whom that burden lies.
 
Madcap_Magician said:
The distinction between standards of proof bears mention here given that some of the mentioned states have differing requirements.

I'll defer to Frank in this, but it's interesting that making a self defense claim can change the required standard of proof and on whom that burden lies.
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We may be getting into the too "inside baseball" realm. In court the parties have their respective burdens of (1) production (producing evidence); (2) proof; and (3) persuasion. Let me see if I can sort the issues out in a way perhaps more accessible to our lay audience:

  1. If a defendant is on trial for a crime involving violence against another person, and if the defendant is claiming self defense or justification to avoid criminal liability, he needs the judge to instruct the jury about self defense. The judge isn't going to do that just because the defendant asks. There will need to be some amount of evidence supporting his claim of self defense. How much, or what type, of evidence will have to be in the record in order to require the judge to give a self defense instruction will vary from State to State.

  2. So in some States a defendant has the burden of producing sufficient evidence to make a prima facie (on its face) case of self defense.

  3. In other States, such as New York, the defendant can get a self defense (justification) instruction if as another member who is a New York lawyer pointed out a while ago (emphasis added):
    Derry 1946 said:
    "Under New York law, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to the defendant.   See Magliato, 68 N.Y.2d at 29, 505 N.Y.S.2d 836, 496 N.E.2d 856;  McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202;  Padgett, 60 N.Y.2d at 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795 (even where an aspect of defendant's testimony was inconsistent with justification defense, justification should have been charged);  People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 (1982);  Torre, 42 N.Y.2d at 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759;  People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 260 N.E.2d 527 (1970) (because jury may believe portions of both defense and prosecution evidence, justification should have been charged even when defendant claimed alibi);  People v. Huntley, 87 A.D.2d 488, 452 N.Y.S.2d 952, 956 (Fourth Dep't 1982), aff'd, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257 (1983) (justification should have been charged where defendant testified, in conflict with other witnesses, that decedent had approached him with knife demanding money).   In sum, if the record includes evidence which, viewed in the light most favorable to the defendant and drawing all reasonably permissible inferences in his favor, satisfies the essential elements of the defense of justification, the charge must be given."
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  4. If the defendant can get his self defense instruction, the prosecution must generally overcome the claim of justification in order to get its conviction. Generally the burden of proof on the prosecution in such cases will be "beyond a reasonable doubt."

  5. In a few States, however, the defendant will have the burden of proving justification by a preponderance of the evidence.

  6. But the practical reality is that, in any case, the less convincingly the evidence, taken as a whole, supports the defendant's self defense claim, the easier it will be for the prosecution to overcome the defendant's claim of justification. And if the defendant has a serious hope to escape conviction on the basis of justification, he will, as a practical matter, want to assure that there will be sufficient, convincing evidence supporting his claim.
 
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Very good presentation. Reminding myself of the original OP question, "Is It Required to Prove Self Defense?" and that the answer should be, as you suggested, plain enough to be helpful to non-lawyers, I suppose a reasonable answer might be, simply, "In some jurisdictions yes, and in some no." (Recall the old story of the child who asked his father how the lights go on.)
 
Kleanbore said:
I'm not a lawyer and i am often wrong.

But I have not heard that Florida has changed the law to place the burden of proof on the defendant.
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FL law was just changed this month to put the burden of proof on the state, not yet signed by the governor but I fully expect that it will be.
 
flphotog said:
FL law was just changed this month to put the burden of proof on the state, not yet signed by the governor but I fully expect that it will be.
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Well the law won't change until the new bill becomes law, but that is not what has in play here--at all.

The burden of proof in criminal cases in Florida has resided with the state for years. No change there.

What the new bill does is establish that, in a pretrial immunity hearing, the state will have to prove, with a preponderance of the evidence, that the actor did not act in lawful self defense.
 
Kleanbore said:
No.

The person claiming self defense must admit to having knowingly and willfully done the deed and must prove at least some evidence supporting his or her claim of self defense.

Except in Ohio, the state must prove beyond a reasonable doubt that the score did not act in self defense.
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In Ohio, it depends.

Under castle doctrine, when in home or one's vehicle, there is the rebuttable presumption of justification.
 
Deanimator said:
In Ohio, .....

Under castle doctrine, when in home or one's vehicle, there is the rebuttable presumption of justification.
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That is not entirely accurate. There's more to it than that.

The applicable law is set out in section 2901.5 of Title XXIX of Ohio Revised Code:
2901.5.

(A) ...

(B)

(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.​
(2)
(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.​
(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.​
(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.

(C) ...
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So being in a home or car isn't necessarily sufficient to get the presumption. There are some threshold conditions which need to be satisfied in order to be entitled the presumption: (1) the person against whom the force is used must:
...[be] in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle...
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; (2) the person against whom force is used must not have a right to be in your home or car; or (3) the person using the force must not be in the house or vehicle unlawfully.

So you might not be entitled to the presumption if you shoot an invited guest in your home -- like when your daughter snuck her boyfriend into the house after curfew or you caught the new guy cheating during your monthly poker night (although it could still be self defense if he gets violent when you try to put him out -- you just wouldn't have the benefit of the presumption). You might not have the benefit of the presumption if you shoot some stranger who broke into your basement to seek shelter from a violent storm (the laws of most States recognize a privilege to trespass in extreme cases -- as long as the trespasser pays for any damage done).

As we've said before: details matter.
 
JeffG said:
For the most part, homicide, that is, one person killing another is presumed to be unlawful. The fact that that level of force had been used, the fact that the person is not dead is irrelevant. The reasons, circumstances and results must be examined by judicial authority; grand jury or coroners inquest.
That is why, when an officer shoots a perp, that officer has to be cleared by judicial process. Once the self defense claim is demonstrated, there is usually no further process, and the self defense shooter is freed.
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Dunno about that; I am sure I recall a few shootings in Texas in self defense where the DA did not refer the case to a grand jury.
 
RPZ said:
Dunno about that; I am sure I recall a few shootings in Texas in self defense where the DA did not refer the case to a grand jury.
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Which probably only means that for some reason, e. g., the evidence of justification was overwhelming, the DA decided not to pursue a criminal charge. Under Texas law (Texas Code of Criminal Procedure, Article 1.05):
....No person shall be held to answer for a felony unless on indictment of a grand jury.
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RPZ said:
Dunno about that; I am sure I recall a few shootings in Texas in self defense where the DA did not refer the case to a grand jury.
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Once the self defense claim is demonstrated, there is usually no further process, and the self defense shooter is freed.
If a cursory examination of the facts by the DA is enough, the process is stopped.....
 
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Frank Ettin said:
Which probably only means that for some reason, e. g., the evidence of justification was overwhelming, the DA decided not to pursue a criminal charge. Under Texas law (Texas Code of Criminal Procedure, Article 1.05):
​
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Yes, in those cases after reading the police report(s) etc the DA simply declined to refer them to a grand jury.

If you are involved in a shoot and you are fortunate enough that the evidence on the scene, witness statements if any, and police report weigh in your favor, this is the way it can go. In Texas.
 
RPZ said:
...If you are involved in a shoot and you are fortunate enough that the evidence on the scene, witness statements if any, and police report weigh in your favor, this is the way it can go. In Texas.
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That's the way it can go everywhere in the U. S. A prosecutor isn't going to pursue a case if the evidence of justification is sufficiently substantial.
 
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Kleanbore said:
Well the law won't change until the new bill becomes law, but that is not what has in play here--at all.

The burden of proof in criminal cases in Florida has resided with the state for years. No change there.

What the new bill does is establish that, in a pretrial immunity hearing, the state will have to prove, with a preponderance of the evidence, that the actor did not act in lawful self defense.
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That's true except in order to establish immunity you have to have a pre-trial hearing and until this law goes into effect it has been on the defendant to establish this, once the Governor it will be up to the state to establish that the defendant does not have immunity, it puts the burden of proof back on the state where it belongs
 
flphotog said:
That's true except in order to establish immunity you have to have a pre-trial hearing and until this law goes into effect it has been on the defendant to establish this, once the Governor it will be up to the state to establish that the defendant does not have immunity, it puts the burden of proof back on the state where it belongs
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Under the bill the defendant files a motion requesting the hearing, claiming immunity, stating why he is entitled to immunity, and alleging the facts upon which that claim is based.

Since the motion is based on facts alleged by the defendant, the defendant will still have the burden of production, i. e., producing evidence making a prima facie case for immunity. If the defendant can not produce evidence supporting one or more of his factual allegations, his claim necessarily fails. And the weaker the evidence supporting the defendant's claim of justification, the easier it will be for the prosecution to overcome the claim.
 
There's a case in Cape Coral, FL this week where a resident has been charged with second degree murder for killing a person, where the arrested had claimed Stand Your Ground as justification. The police in attendance dismissed this claim and arrested him for murder at the scene. The arrested person claims that he was woken in his home around 9:30am by an armed intruder demanding cash, however the police could not corroborate any of the allegations with witnesses or from evidence at the scene. A housemate was home at the time of the shooting, and apparently other witnesses saw the victim on the property immediately before shooting started. All casings found on the scene were outside of the home, when the resident claimed he had opened fire inside the home. Everything points to the resident chasing a person encountered on the property down the street and shooting him in the back (13 rounds out of an AR15 in a dense residential street, multiple houses struck by bullets), and possible planting of evidence on the victim. Bail was denied. No reason has been given for why the victim was on the property, but he was arrested only 10 days before the shooting on a separate loitering charge.

This town is a relatively 2A friendly jurisdiction as well. The police have stated that there is no evidence of self defense.
 
My home county regularly charges people claiming self defense with murder, about once or twice a year. Every person willing to spend money on a lawyer gets acquitted. The last two that come to mind were a man who ran to the defense of a woman getting beaten to death by her ex-spouse and a man who shot the burglar who loaded his truck with his property and drove off while making a gun like movement towards the property owner.

In both cases the media was at best neutral and the local PD was on the side of the criminal. In the one case, the PD claimed the thief had accelerated away from his crime in a stolen truck that went from a standing stop to 55mph in less than 150 feet. Thus he was defenseless and fleeing. He should have been hanging on for dear life because that type of acceleration in a 6,000 lb truck requires several thousand horsepower. It appeared to me that the police went to great lengths to make the felon( with several hundred previous arrests) the victim. In his grief the convicted felons, convicted felon dad, stole a police car when they came to console him for the loss of his criminal son. They didn't charge him for that one because he felt bad.

In both cases the shooting looked legit and the police pretended to have no problem with the person who defended themselves. The supported the shooter and cajoled a statement before advising them of their rights or telling them they would be charged. Once they let their guard down and spoke with law enforcement, law enforcement went to work proving a murder case against them. Winning a self defense case is common here and the state must repay your lost wages and legal fees if they lose. They still try over and over again. Why? To compel people to become victims of crime and to protect the rights of the criminal. This is the coming backlash for self defense, shooting your attacker denies him/her their right to a fair trial. Keep watching, it is happening.

Not being a lawyer, but seeing what happens in Washington state, I can tell you a few things. You better be able to show a clear case of your life being in danger, not someone else's. You should expect to be held to a far higher standard than law enforcement. LEO's can kill you for pointing a cell phone, squirt gun or pen at them, you better expect to be charged if the guy threatening you does not actually have a gun. Every shot you fire is going to be questioned, LEO's regularly drain a magazine into a criminal with no one getting upset, if you do that, expect a murder charge.

I wouldn't talk to the responding police without a lawyer, period. Minimal information to render assistance and identify yourself, otherwise keep your version to yourself until you have legal council present. The fact you are right does not make you not guilty in the eyes of many people.
 
lonegunman said:
I wouldn't talk to the responding police without a lawyer, period. Minimal information to render assistance and identify yourself, otherwise keep your version to yourself until you have legal council present. The fact you are right does not make you not guilty in the eyes of many people.
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Truer words were never spoken.

You're more likely to talk yourself INTO trouble talking to the police without benefit of counsel than you are of talking yourself OUT of it. Richard Jewell learned that lesson the hard way.

What does a cop who gets in trouble do? He shuts up and invokes his right to counsel/union representation. There's probably a lesson there...
 
goldpelican said:
This town is a relatively 2A friendly jurisdiction as well. The police have stated that there is no evidence of self defense.
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It is important to not confuse issues relative to the right to keep and bear arms with the subject of the justification of the use of force.
 
lonegunman said:
I wouldn't talk to the responding police without a lawyer, period. Minimal information to render assistance and identify yourself, otherwise keep your version to yourself until you have legal council present.
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Should your decision to follow that plan result in your failure to point out favorable evidence before it disappears, or to identify witnesses before they disappear, you will rue the day,
 
Kleanbore said:
Should your decision to follow that plan result in your failure to point out favorable evidence before it disappears, or to identify witnesses before they disappear, you will rue the day,
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It's a razor's edge. Say what needs to be said and NOTHING more.

Richard Jewell tried to be "helpful" to the authorities.
 
Kleanbore said:
I think that puts it very well.

The problem is that many people seem to have no way of knowing what it is that needs to be said.
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I've read Massad Ayoob's recommendations, and while they have certain merits, his "script" is WAY too verbose. I think when he wrote them, he forgot that he speaks FOR A LIVING, and most people DON'T.

Were my mother to try to repeat it verbatim, I wouldn't be surprised if she ended up confessing to the assassinations of JFK and RFK.

I'd stick with whatever is required by state and local statute, plus a BARE minimum of what's required to portray yourself as the victim.

The more you say, the more there is for someone malicious to hold against you if there's the slightest inconsistency.
 
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