Florida moves forward

[Jack B.]

Early yesterday evening, Friday, June 9th, Governor Rick Scott SIGNED INTO LAW the two critically important self-defense bills we have been urging him to sign.

One, SB-128 Burden of Proof by Sen. Rob Bradley and Rep. Bobby Payne restores the presumption of innocence in self-defense cases by putting the burden of proof BACK ON THE STATE where it belongs. SB-128 took effect IMMEDIATELY.

When prosecutors and judges use procedures to circumvent the rights of law-abiding people and the will of the Legislature, it cannot be tolerated.

Procedures do not have the weight of law and now the Legislature and the Governor have erased these abusive procedures in self-defense cases and have legislatively made sure these self-defense rights are reinstated. Pending cases should have the retroactive benefit of the Legislature and the Governor erasing these malicious procedures.

The second, SB-1052 Justifiable Use of Force by Sen. David Simmons and Rep. Cord Byrd corrects a 2014 drafting error (by a member of the House Criminal Justice Committee Staff) resulting in a requirement that citizens be under attack in their own homes before exercising self-defense – and in some circumstances imposing a duty to retreat from your home before exercising self-defense.

 

[Squire Western]

Good news. Gunowners can certainly depend on Rick Scott. Maybe Americas #1 pro gun Governor.

 

[RPZ]

Like it!

 

[Frank Ettin]

....SB-128 Burden of Proof by Sen. Rob Bradley and Rep. Bobby Payne restores the presumption of innocence in self-defense cases by putting the burden of proof BACK ON THE STATE where it belongs.....

Have you read the bill? Do you think you know what the change means?

Let's look at what the bill actually says and discuss what the change means. The bill adds the following to 776.032 (emphasis added):

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection.

So first this applies at a pre-trial hearing on the self defense claim, and in order to shift the burden to the prosecution, the defendant must produce evidence sufficient to support prima facie the self defense claim.

Now this is how I described, almost a month ago, in general (not State specific) terms the process for litigating a self defense claim:

....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):
   
   
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.

A significant feature of Florida law has been the availability of a pre-trial hearing on the question of justification. That has been in place for a number of years, and I outlined it in this post.

So yes, the burden of proof has been shifted to the prosecution in a pretrial justification hearing. But the defendant still has the burden of production (of evidence supporting his self defense claim). And the less convincing the defendant is, the easier it will be for the prosecution to sustain its burden of proof.