Is It Required to Prove Self Defense?

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Deanimator said:
....I think when he wrote them, he forgot that he speaks FOR A LIVING, and most people DON'T.....
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Welcome to real life in the real world. But something else about real life --

  • In general, how well things work out for us will be a product of how well we deal with the various challenges that will confront us in life.

  • And in general, how well be deal with a challenge will be a product in large part of what preparation, education, knowledge, skills, judgment, experience, and wisdom, i. e., our "toolbox", we have available at the time to help us deal with the challenge.

  • And there will often be, in connection with certain types of challenges, some "best practices" which have been identified as likely to be optimal ways of dealing with the challenge.

  • Often these "best practices" aren't easy. And quite possibly one will not have the appropriate tools in his toolbox to effectively apply these "best practices." So people will need to make some accommodations and deal with some challenges as best they can with the tools they have, even when they don't necessarily have the some of the tool they might need.

  • But still understanding certain "best practices" will at least give one a chance to develop and assemble the assortment of tools needed to manage a certain type of challenge in the best way.
 
Frank Ettin said:
Welcome to real life in the real world. But something else about real life --

  • In general, how well things work out for us will be a product of how well we deal with the various challenges that will confront us in life.

  • And in general, how well be deal with a challenge will be a product in large part of what preparation, education, knowledge, skills, judgment, experience, and wisdom, i. e., our "toolbox", we have available at the time to help us deal with the challenge.

  • And there will often be, in connection with certain types of challenges, some "best practices" which have been identified as likely to be optimal ways of dealing with the challenge.

  • Often these "best practices" aren't easy. And quite possibly one will not have the appropriate tools in his toolbox to effectively apply these "best practices." So people will need to make some accommodations and deal with some challenges as best they can with the tools they have, even when they don't necessarily have the some of the tool they might need.

  • But still understanding certain "best practices" will at least give one a chance to develop and assemble the assortment of tools needed to manage a certain type of challenge in the best way.
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The point is that one shouldn't accept "best practices" as dogma or blindly accept them as gospel.

Simple is almost always better than complicated, and Ayoob's script definitely isn't simple. I question its applicability to the average person with no legal training and who does not speak publicly on a regular basis, nevermind for a living.
 
Deanimator said:
Simple is almost always better than complicated, and Ayoob's script definitely isn't simple. I question its applicability to the average person with no legal training and who does not speak publicly on a regular basis, nevermind for a living.
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Forget the "script", but do not fail to point out relevant evidence or witnesses.
 
Deanimator said:
The point is that one shouldn't accept "best practices" as dogma or blindly accept them as gospel....
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Nope. Best practices is best practices. They might be beyond the ability of someone to implement, but that doesn't change the fact that they'd be the best course of action.

Deanimator said:
...Simple is almost always better than complicated,....
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Not necessarily. Simple will be easier than complicated, and someone might be better able to implement something simple. But that doesn't mean that it's better. It only means that might be the best someone is capable of.
 
I think I've seen a post by Frank Ettin to the following effect:
The best course of action is to say the right thing.
The next best course of action is to say nothing.
The worst course of action is to say the wrong thing.
​
The problem, of course, is knowing which is which. Practically, when dealing with the police, a SD shooter needs to be able to give enough information to get the investigation pointed in the right direction. IMNSHO, the shooter needs to identify witnesses before they vanish and identify relevant evidence on the scene. He or she needs to be able to tell the police something like "That guy and his friend (who ran away & was wearing X, Y and Z) attacked me. He swung a piece of pipe at my head, and I think that's the pipe over there. There was a guy that came out of that store right before I was attacked, and he should have seen everything. I think that's him over there, walking away."
 
Frank Ettin said:
Nope. Best practices is best practices. They might be beyond the ability of someone to implement, but that doesn't change the fact that they'd be the best course of action.

Not necessarily. Simple will be easier than complicated, and someone might be better able to implement something simple. But that doesn't mean that it's better. It only means that might be the best someone is capable of.
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A plan which can't be executed is barely better than no plan at all.

Any plan not tailored to the abilities of those expected to execute it isn't worthy of the name.
 
I worry that someone who cannot identify oneself as the victim, point out any witnesses before they leave the scene, point out any evidence, state that he or she will speak later, and shut up should probably not be carrying a firearm.
 
Deanimator said:
A plan which can't be executed is barely better than no plan at all.

Any plan not tailored to the abilities of those expected to execute it isn't worthy of the name.
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Phooey!

We're not customizing a plan for an individual, taking into account his or her limitations. It's up to each individual to make his own plan, based on his self knowledge. We're providing information about what the best plan might be, and each person will need to decide how to use that information to his advantage.

I've no doubt that there are many people with the capacity to execute an optimal plan if required by circumstances to do so.
 
Kleanbore said:
I worry that someone who cannot identify oneself as the victim, point out any witnesses before they leave the scene, point out any evidence, state that he or she will speak later, and shut up should probably not be carrying a firearm.
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The world is literally teaming with people who cannot speak clearly or coherently, yet who can shoot somebody trying to dismember them with a machete.

Nowhere in Ohio's carry laws is there an eloquence standard.
 
Deanimator said:
The world is literally teaming with people who cannot speak clearly or coherently, yet who can shoot somebody trying to dismember them with a machete.
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How many of them can be counted upon to understand when it is lawful to use force, and when it is not?

If the prelim is a speech defect, that's one thing, and a solution for the individual should be thought about in advance and trained.

Simply communicating nothing can destroy a defense of justification before it begins.
 
Deanimator said:
The world is literally teaming with people who cannot speak clearly or coherently, yet who can shoot somebody trying to dismember them with a machete.....
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Then they might have more problems dealing with the aftermath of a critical incident than someone else who is not thus handicapped -- just as someone lacking the ability to effectively defend himself under particular circumstances will have a bad outcome.

There's no guaranteed solution.
 
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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Offering too much information, being stupid enough to think law enforcement cares about you or volunteering information that will lead to your conviction and imprisonment are all options other than the lawyer. Having a lawyer does not exclude you from noticing witnesses or prevent you from pointing out evidence.

In the last decade, in my home county, more than a few people ended up in court after a friendly talk with the cops about their reasons for defending themselves. Roll the dice,,,,,,,,,,,,,,,,,,,,,,George Zimmerman did and it ruined his life.

And before anyone gets excited and thinks I am in any way, shape or form defending Zimmerman, I'm not. He shot a 17y/o who was,according to every eyewitness account, crushing his skull into the sidewalk when he fired and he was still charged with murder.
 
lonegunman said:
Offering too much information, being stupid enough to think law enforcement cares about you or volunteering information that will lead to your conviction and imprisonment are all options other than the lawyer. Having a lawyer does not exclude you from noticing witnesses or prevent you from pointing out evidence......
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Yes, you will want a lawyer available. But some information may need to be provided to the police at the scene, when they first arrive and before your lawyer can be present.

  1. Here's what a lawyer and well known commentator on self defense law, Andrew Branca, says about not saying anything to the police without your lawyer:

    • (emphasis in original)
      ...The “say nothing until lawyer” advice is based on the reality that anything you say to police can and may be used against you. It’s certainly true that the only 100% certain way to avoid saying anything incriminating is to say nothing at all.

      Rarely mentioned, however, is that what you DON’T say can also be used against you. Sure, you have a Constitutional right to remain silent, and once you’ve asserted that right your silence cannot be used against you.

      But this privilege applies post-arrest. Your silence before then can certainly be used by the Prosecution to infer guilt—an innocent person would have mentioned self-defense at the time, they’ll argue, and the fact that you did not do so suggests you only fabricated your story of self-defense after the fact to avoid criminal liability....
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    • (emphasis in original)
      The 911 Call: Be the Complainant, Not the Respondent

      A huge problem for Michael Dunn in his claim of self-defense was the considerable consciousness of guilt evidence he provided to prosecutors. In particular, his flight from the scene well beyond the need to secure his safety and his failure to ever report the shooting to law enforcement before he was arrested at gun point on a murder warrant. This conduct was far more consistent with the behavior of someone who believed he’d “gotten away with it,” than it was with the behavior who believed they’d acted in lawful self-defense. This was especially damaging given that the only evidence of self-defense came from Dunn’s own testimony in court....
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    • (emphasis in original)
      ...Let’s assume for purposes of this post, then, that you buy into the value of being the complainant rather than the respondent, and you therefore are the first to call 911.

      Taking the “say nothing until I talk to my lawyer” advice literally, exactly what are you going to say when the dispatcher answers your call? “I will say nothing until I’ve spoken to my attorney.” Really? When they ask “what’s your emergency?” surely that statement can’t be your reply. Rather, you’ll necessarily provide some description of what’s happened and the location to which you’re asking law enforcement (and ambulance) be sent.

      So, you’re ALREADY speaking with the police. And as long as you’re doing so, my advice is to get your claim of self-defense into the evidentiary record as soon as possible. You were attacked, you were in fear for your life, you were forced to act in self-defense. Of course, all of this will be recorded, and that recording will be admissible in court. As a result, the jury will get to hear your claim of self-defense in your own words and voice, with all the stress of the moment that such an event necessarily brings with it....
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    • (emphasis in original):
      ...You’ve called 911 to request law enforcement to your location (or the location of the defensive use of force, in the event you’ve fled the scene for safety), and eventually they’ll arrive. Hopefully, quickly, too often not so quickly. In any case, sooner or later they’ll be on scene, walking up, seeing a body on the ground, you standing nearby, and asking what’s happened. Their job is to secure the scene for evidence and witnesses (and safety, of course), and await for the investigative officers to arrive.

      Is this where you literally say nothing but “I will say nothing until I’ve spoken to my attorney?” I suggest that’s not the best of strategies for a number of reasons.

      First of all, it’s not conduct consistent with innocence, but rather with consciousness of guilt. Of course, if we assume you’ve already called 911 and spoken with the dispatcher as described then it’s already on record that you were attacked, were in fear for your life, and used defensive force. If so, no harm in telling the same to the responding officers.

      Second, you will definitely want to be cooperative and compliant with responding officers in terms of securing the scene and their safety. .....

      Third, you’ll want to make sure that you advise the responding officers of any evidence that might otherwise be overlooked. If your attacker came at you with a knife, and that knife fell into a bush when he fell to your shot, you definitely want to make sure the police know to look for the knife in that bush. If the knife is overlooked and not secured as evidence, for trial purposes it really doesn’t exist—and then what’s your justification for the use of deadly force in self-defense?

      The dynamics are the same with witnesses. Attackers often act when there are few if any witnesses around. If we assume there were a handful of witnesses, we can usually be pretty confident that by the time the police actually arrive a crowd will have begun to collect. Now those five witnesses are buried in a crowd of perhaps 50. Are you really going to force the police to interview 50 witnesses and hope they get to the key 5 before the crowd disperses? If your 5 witnesses disappear from the scene, the prospects of later identifying and locating them becomes very slight indeed....
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  2. Also folks need to understand that it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

    • U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:
      ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....
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    • State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:
      ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'

      McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.

      We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....
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    • State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:
      ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.

      Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...
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    • Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:
      ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:

      "Sec. 1538 Conduct as Evidence of Guilt

      "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...

      See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....
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lonegunman said:


Best thing to watch ever.
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That's great advice--for those whose defense will be to claim "I didn't do it".

But that's unlikely to be a good way at all to go about defending oneself after a self defense incident. It will probably be extremely evident that the actor did do it, and trying to claim otherwise would in most cases be disastrous. The actor's only viable defense would be to claim "I did it--but it was necessary, and under the law, it should be excused".

And that little bit of advice on "why you should never...." is not scripted to best apply in such a circumstance. In fact, it could well lead to the conviction of the defendant.
 
Frank Ettin said:
I managed to find Ohio law on this, so let's have a look.

Here's the relevant Ohio law (2901.05 Burden of proof - reasonable doubt - self-defense):
​

Let's break that down to try to understand it:

  1. Self defense would be an affirmative defense (as defined at 2901.5(D)(1)) to a criminal charge relating to an alleged unlawful use of force.

  2. Therefore, if the accused claims self defense, as provided in 2901.5(A):
    ​

  3. However, 2901.5(B)(1) provides, in pertinent part (emphasis added):
    ​
    • To understand what that means we need to understand what a "presumption" is.
      • A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

      • So 2901.5(B) provides that under certain circumstances one does not have to prove the elements of self defense directly; he will be presumed to have used force in self defense. However, to have the benefit of that presumption, certain facts must be true; so the accused will have the burden of producing evidence and proving those facts, i. e., that:
        ​

      • Note also the the presumption provided under (B)(1) will not apply under the circumstances described (B)(2).

  4. The presumption provided under (B)(1) is rebuttable by a preponderance of the evidence (2901.5(B)(3)).

  5. So if the accused claims self defense, under Ohio law he will either have to prove the elements of self defense by a preponderance of the evidence or prove that the predicate facts entitling him to a self defense presumption under 2901.5(B)(1) were true.
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This is certainly good information to have about my neighbor to the north. Ohio has CCW reciprocity with KY, but the legal climate with regard to self-defense appears to be substantially different.
 
1911 guy said:
Reading the comments from lawyers and others who are somewhat educated in the law should drive home another point:

How many times have we read or heard the question "When can I shoot?" Completely backward attitude. For myriad reasons, legal being one of them, the question should be "At what point does using force become my best remaining option?"
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This is a major point, at least for me, all the time.

And while I agree that lethal force should only be used when there are no other options (that's Reader's Digest version for now), it also puts us at a great disadvantage when it comes to reacting to save our own or other's lives. I was reminded in the thread that was just closed re: shooting the guy drowning the babies...the neighbor who shot knew he had to act but at the same time, in doing so, the realistically educated shooter also knows that doing so, even being right, they may lose their house.

Not only do we have to remember this, we have to assess each situation accordingly. And that may make the difference in life or death. "Hey, I could get involved here but...even if I'm right, the legal bills will kill me."
 
I just bought the book "The Law of Self Defense" third edition by Andrew F Branca, forward by Mas Ayoob. In chapter one paragraph 41 he wrote

The answer in 49 states ( except Ohio, see previous paragraphs ), the answer is no. With one exception, every state imposes the burden of persuasion ( again see previous paragraphs ) on self-defense on the prosecution... That is, the prosecution must disprove you acted in self-defense beyond a reasonable doubt.
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