Quantcast
  1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Burden of proof in justifiable homicide?

Discussion in 'Legal' started by bushmaster1313, Mar 24, 2012.

Thread Status:
Not open for further replies.
  1. bushmaster1313

    bushmaster1313 Member

    Joined:
    Oct 26, 2008
    Messages:
    3,592
    Location:
    Peoples Republik of New Jersey
    Raise a reasonable doubt that it was justifiable or prove it by preponderance of the evidence?
     
  2. Hypnogator

    Hypnogator Member

    Joined:
    Dec 29, 2002
    Messages:
    1,805
    Location:
    AZ, WA
    Proof beyond a reasonable doubt.

    Preponderance of evidence is only in cases of civil liability.
     
  3. avs11054

    avs11054 Member

    Joined:
    Jul 23, 2010
    Messages:
    649
    Location:
    AZ
    I think it depends on the state. In Arizona, technically the prosecution must prove it was not self-defense. Like any other criminal trial, it must be beyond a reasonable doubt.
     
  4. bushmaster1313

    bushmaster1313 Member

    Joined:
    Oct 26, 2008
    Messages:
    3,592
    Location:
    Peoples Republik of New Jersey
    Once defense is raised, does state gave to prove it was not or does defendant have to prove it was.

    Info on FL would be especially interesting
     
    Last edited: Mar 24, 2012
  5. Kleanbore

    Kleanbore Moderator

    Joined:
    Aug 13, 2008
    Messages:
    7,780
    The allocation of the burden of proof varies with the jurisdiction.
     
  6. Art Eatman

    Art Eatman Administrator Staff Member

    Joined:
    Dec 22, 2002
    Messages:
    43,481
    Location:
    Terlingua, TX; Thomasville,GA
    A generality: It must be demonstrated to the satisfaction of the jury that a reasonable and prudent person would have felt threatened with serious injury or death if deadly force had not been used to avoid the injury or death.

    I'm assuming that the case is where there was a gratuitous assault of some sort.

    Assailant with a weapon, or where there was a disparity in size with the assailant being larger, or younger and more agile. Or multiple assailants. Any of these have swayed juries in the past.
     
  7. cbrgator

    cbrgator Member

    Joined:
    Jan 23, 2008
    Messages:
    2,525
    bushmaster,

    Here is the law in Florida:

    "The law is clear that raising self-defense does not shift the burden of proof to the defendant. Rather, once a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Spicer v. State, 22 So.3d 706, 707 (Fla. 5th DCA 2005).
     
    Last edited: Mar 24, 2012
  8. Owen Sparks

    Owen Sparks member

    Joined:
    May 27, 2007
    Messages:
    4,524
    Isn't this why George Zimmerman has not been charged in the shooting of Travon Martin?

    It really comes down to his word against Martins and Martin is dead. So far no one can prove that Zimmerman was not attacked by Martin and was in fear for his life.
     
  9. bushmaster1313

    bushmaster1313 Member

    Joined:
    Oct 26, 2008
    Messages:
    3,592
    Location:
    Peoples Republik of New Jersey
    Now it makes sense, at least in Florida.

    Most criminal defendants do not testify in their own defense because, even if they are willing to lie through their teeth, the prosecutor can then impeach their credibility by asking about all the bad things they did in the past ten years.

    Most CCW holders will have clean records (Duh!).

    So if a CCW holder makes out a prima facie case by swearing that he or she did it in self defense, it will often be hard for a prosecutor to prove beyond a reasonable doubt that it was not self defense.

    It will probably even be hard for the prosecutor to survive a motion to dismiss.
     
  10. Bruno2

    Bruno2 Member

    Joined:
    Aug 3, 2009
    Messages:
    886
    Location:
    Tulsa , Oklahoma
    The way I have heard it explained is that the prosecution has to prove guilt beyond a reasonable doubt. The defense doesnt have to testify at all if they feel like they should use the 5th. A lot of defense lawyers wont let their clients testify in their own trial in fear of the prosecution twisting stuff around. After all the prosecution is bringing the charges so they need to prove it not the other way around.
     
  11. baylorattorney

    baylorattorney Member

    Joined:
    Apr 8, 2011
    Messages:
    489
    In texas, since passage of the castle doctrine, when self defense is raised by the accused, the state has the burden to prove it was not beyond a reasonable doubt.
     
    Last edited: Mar 25, 2012
  12. baylorattorney

    baylorattorney Member

    Joined:
    Apr 8, 2011
    Messages:
    489
    It's not a justifiable homicide the accused is on trial for. Its a homicide and the prosecutor must prove guilt beyond a reasonable doubt.
     
  13. Arkansas Paul

    Arkansas Paul Member

    Joined:
    Mar 18, 2009
    Messages:
    7,397
    Location:
    Central Arkansas
    Preponderance of the evidence is the burden of proof in civil matters. It simply means, "Evidence of the greater weight". Imagine a balance scale. If the evidence from each side is applied and the scale tips ever so slightly, that's enough. That's why in matters of negligence there is usually two kinds, comparative and contributory. It's to make the punishment fair.

    In a matter of homicide, it would be criminal charges if any, where the burden of proof is "beyond a reasonable doubt" which is a much higher standard of proof than preponderance of the evidence.

    The thing is that it is going to vary from state to state. Whether or not your state has a castle doctrine will be big.

    Self defense is an affirmative defense, which means you will be admitting to shooting someone, but contending that you had a valid reason for doing so. The thing is when you plead an affirmative defense, you are admitting to the act, so the burden of proof usually shifts to the defendant. That's why affirmative defenses are a double edged sword. You have admitted that you committed the act, so if you don't prove your reason is valid, you're screwed. If there is a castle doctrine, it removes a lot of these complications.

    As has been said, this will vary from state to state.

    +1 Justifiable homicide is not a charge. It is actually a defense.
     
  14. brickeyee

    brickeyee Member

    Joined:
    Feb 25, 2005
    Messages:
    3,135
    Unless the defense raises self defense.

    Even in Florida they must "makes a prima facie showing of self-defense."
    Arkansas Paul above has it right

    Most criminals have plenty of other stuff they could be questioned about.
    They have a real issue with taking the stand, even in their own defense.

    It makes it very hard to claim self defense if you are already 'dirty.'
    Virginia has NO statute laws governing lethal force.

    It is all CASE law.
    even the police operate under the case law.

    We have no duty to retreat (from any place you are otherwise legally allowed to be), and may use lethal force if a ' reasonable person' believes death or grave bodily harm is imminent.

    The only thing we lack is some type of immunity from civil actions, but they are not all that common in Virginia.

    Case (AKA 'common') law can be just as effective as statute law.

    One of the issues in Virginia with passing any type of statute law is that it could interfere with the existing case law in unintended ways.
     
    Last edited: Mar 25, 2012
  15. baylorattorney

    baylorattorney Member

    Joined:
    Apr 8, 2011
    Messages:
    489
    The jury is the fact finder and the judge will instruct them on the law. The jury will decide: and this is simple version whether the accused acted in a manner that caused the death of the victim, whether this act was intentional, etc. and did the state prove this beyond a reasonable doubt. Many times the defendant admits or confesses to the killing, but states it was in self defense (confession and avoidance) the jury must then determine whether the accused acted in self defense.

    This whole business of cops having to prove self defense is no defense before making arrests is new to me and just doesn't seem right.

    I can just go shoot someone, claim self defense and walk away uncharged, not arrested? Seems odd.
     
  16. Deanimator

    Deanimator Member

    Joined:
    Mar 30, 2006
    Messages:
    10,854
    Location:
    Rocky River, Ohio
    It depends upon the state AND the circumstances.

    In Ohio, if in home or vehicle, when placed in reasonable, immediate fear of life and limb, you have the rebuttable presumption of justification for the use of deadly force. There is no need to retreat or take other action to avoid the use of deadly force.

    Outside of home or vehicle, you must show justification and you have a duty to retreat before using deadly force, IF you can do so IN PERFECT SAFETY.
     
  17. Owen Sparks

    Owen Sparks member

    Joined:
    May 27, 2007
    Messages:
    4,524
    How odd would it be if you had to shoot someone because he tried to kill you and you went to jail because you could not prove he did?

    The burden of proof is on the accuser.
     
  18. Arkansas Paul

    Arkansas Paul Member

    Joined:
    Mar 18, 2009
    Messages:
    7,397
    Location:
    Central Arkansas

    Actually in a lot of self defense cases, it never gets to a jury. There have been cases around here in the past years of self defense where the prosecutor didn't even bring charges because the self defense aspect of it was clearcut.
     
  19. brboyer

    brboyer Member

    Joined:
    Mar 26, 2009
    Messages:
    956
    Location:
    Tampa Bay Florida
    In Florida, the police are PROHIBITED from making an arrest if the 'subject' claims self defense (he/she was reasonably in fear of death or great bodily harm) unless they have probable cause (evidence) that the subject did not in fact, have a reasonable fear of death or great bodily harm.

    Last year the Florida Supreme Court ruled that in both Civil cases and criminal cases where the respondent/defendant claims immunity from prosecution, the judge must hold an evidentiary hearing prior to any trial. In this hearing the respondent/defendant is only required to present, by a preponderance of the evidence, that he/she acted with 'reasonable' fear.

    They did this because several lower courts mistakenly thought that the immunity claim was a matter of fact (and for the jury to decide) rather than a matter of law (which id the responsibility of the judge to decide).

    So if someone is arrested after a self-defense shooting (which should only occur if there is significant evidence that the shooter was not in reasonable fear of death or great bodily harm), and then charges are filed, it will have to go to a judge for a ruling before any trial can begin. The same holds true for a civil case. A judge must hold a hearing prior to any trial, if the judge rules immunity applies, no trial will occur and the plaintiff will have to pay all court costs, attorney fees and lost wages for the respondent.
     
    Last edited: Mar 25, 2012
  20. Loosedhorse

    Loosedhorse member

    Joined:
    Aug 4, 2008
    Messages:
    3,454
    Location:
    eastern Massachusetts
  21. brickeyee

    brickeyee Member

    Joined:
    Feb 25, 2005
    Messages:
    3,135
    and most of this is moot since if you plead self defense you admit to the intentional killing, and then MUST point to evidence that complies with the stats SD laws (statute and/or common).

    Even in Florida you MUST present at the evidenciary hearing or you will lose the self defense case, and you have already admitted to homicide.

    the burned shifts if you plead slef defense since it as an affirmative defense.

    I did the shooting.

    I intended to do the shooting.

    This is why it is NOT an illegal act...
     
  22. RinkRat

    RinkRat Member

    Joined:
    Jan 27, 2011
    Messages:
    297
    Pickup can opener / attach to sealed can of worms / turn handle / open lid / worms are off and slithering :uhoh:

    Say for argument sake ... Some young wah-nah-be tough guy punches another guy at least half his age in the face just because he can ... this elderly gentleman is bewildered because of the blunt-trauma to his head ... his foggy thoughts remind him he has a firearm in his pocket and not wanting this punk to beat him into an "Intensive-Care-Unit" ... he draws and fires killing said tough guy.

    So now what ??

    A person faced with the above scenario's definition of "protecting myself from great bodily harm" in his mind has been met. He could have or is about to suffer a possible life withering concussion.

    At what point do you let someone beat the living crap out of you before you are suppose to feel that you are in great bodily harm?

    As your being treated by an EMT on scene or in a hospital's ER you say: Officer ... I was minding my own business and this <insert description> more then half my age started punching me and was about to put me into a hospital's ICU because he wouldn't stop hitting me in the face ... he broke my nose and now I have 5-stiches in my forehead ... I felt my life, safety, well being, and present quality of life was very threatened by him ....

    Again I ask ... now what :confused:
     
  23. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,589
    Location:
    California - San Francisco Bay Area
    I'm going to take a fairly detailed look at self defense and establishing a claim in defense of a criminal charge of justified use of force. Because Castle Doctrine/Stand Your Ground laws have come up, I'll be taking a look at how those work. Because Florida has come up, I'll focus on the Florida Castle Doctrine/Stand Your Ground Law. And because there are some unique wrinkles to Florida procedure, I'll look at that.

    So this post will look at --

    1. Self defense in general as a defense when accused of a crime.

    2. Castle Doctrine/Stand Your Ground laws focusing on Florida law.

    3. Some unique aspects of Florida procedure.

    I. How Pleading Self Defense Works in General

    In general, if you're accused of a crime it's up to the State to prove your guilty beyond a reasonable doubt. But things work a little differently if you are pleading self defense.

    Basically --

    [1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

    [2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

    [3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

    Let's go through that again.

    In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

    If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

    But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

    So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all elements necessary under the applicable law to justify your conduct.

    Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the less convincing your story, and your evidence, is, the easier it will be for the prosecutor to meet his rebuttal burden.

    II. How a Castle Doctrine/Stand Your Ground Law Can Help

    Too many people have extravagant and unrealistic expectations of Castle Doctrine/Stand Your Ground laws. People need to understand what they mean and how they work. They can help someone who has legitimately used force in self defense establish that his use of force was justified, but they are not "licenses to kill", "get out of jail free cards", or "commissions as a freelance vigilante."

    We'll look specifically at Florida law. However, all the self defense/Castle Doctrine/Stand Your Ground laws I've looked at are pretty similar.

    A. Justified Use of Lethal Force

    [1] In general, under Florida law the use of lethal force can be justified as provided in Title XLVI Florida Statutes, Section 776.012:

    [2] So if you claim your use of lethal force in self defense was justified, you will at least need to put forth evidence that the requirements of 776.012 were satisfied.

    [3] The Florida's Castle Doctrine/Stand Your Ground law at Section 776.013 helps by providing, among other things:

    [3] 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.

    [4] So you can establish that your use of lethal force was justified, thus satisfying 776.012, if --

    1. You can show that --

      • The person you used force against was, "...in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will..."; and

      • You, "...knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...."

    2. None of the exceptions in 776.013(2) apply.
    And if you can do that, you don't have to specifically establish that you believed, "...that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

    [5] But note that you don't get the presumption automatically. You need to show that the conditions that create the presumption exist. That might be easier than showing a fear of imminent death or great bodily harm, but you still must do some work to establish your claim of justification.

    [6] And in the law, any available presumption is rebuttable. That means that even though one may be entitled to the benefit of a presumption as to a certain fact, the other side may try to prove that fact is not actually true. So, for example, even if you might have been entitled to a presumption that you were reasonably in fear for your life, the prosecutor could put on evidence and try to show that under the particular circumstances, a reasonable person could not have been reasonably in fear for his life.

    B. In General, an Aggressor Cannot Claim Justification.

    There is a general rule at Common Law that one who is an aggressor or is engaging in certain unlawful acts can not claim the protection of self defense. This rule is reflected in Florida law at 776.041:

    III. Unique Florida Procedure

    As the laws of a number of States now do, Florida law provides for immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense. See 776.032:

    The difficulty is that there will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

    In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

    Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial, as described above, under "I. How Pleading Self Defense Works in General." Florida has established a slightly different procedure.

    In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:
    And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:

    Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --

    1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and

    2. The court would hold an evidentiary hearing on the motion; and

    3. The defendant at that hearing has the burden to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.

    4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.
    IV. The Bottom Line

    It's not sufficient that one merely claims to have used force to defend himself or another. He will need to show that the elements constituting justification were satisfied. And every Castle Doctrine/Stand Your Ground law has conditions, in general similar to those under the Florida statute, that a defendant will need to show have been satisfied in order to be protected under those laws.

    In one way Florida is unique. Under the most recent Florida case law, to establish a claim of self defense, the defendant will need to prove by a preponderance of the evidence to a judge the elements of self defense at an evidentiary hearing, rather than to a jury at a trial.
     
  24. cbrgator

    cbrgator Member

    Joined:
    Jan 23, 2008
    Messages:
    2,525
    fiddletown,

    I think you should clarify in your post that this only applies to the pre-trial evidentiary hearing regarding immunity from prosecution. There is no such standard when the Defendant raises self defense as an affirmative defense at trial. In that situation, the standard I cited in post #7 is applicable. Everything you said is accurate, but I think you should take your last sentence (which I quoted herein) one step further and discuss the trial procedure as well. That way those reading this can get a comprehensive analysis of the law in its entirety in one post.

    I appreciate your thorough analysis, and I know you made brief mention of this distinction below your Peterson quote, but I don't want those who aren't attorneys to be confused.
     
  25. Bruno2

    Bruno2 Member

    Joined:
    Aug 3, 2009
    Messages:
    886
    Location:
    Tulsa , Oklahoma
    Ok, I see the difference now guys. The shooter claiming self defense would have to testify in order to make or substantiate his claim for SD. Where if the shooter was saying I didnt do it, I wasnt anywhere near there and I couldnt have shot anyone. Then there is no SD claim to be validated. So then the shooter wouldnt have to take the stand. However, since someone is claiming SD that has to be proven to have been necessary. So some of the burden of proof is on the shooter in the SD case and the burden of proof saying it was criminal is on the prosecution. Where if the shooter was denying all allegations then the Prosecution would have all of the burden upon them.
     
Thread Status:
Not open for further replies.

Share This Page