Bruno2
Member
In some states is it required that a defendant takes the stand to prove a self defense claim or does the 5th Amendment protection come into play?
Is It Required to Prove Self Defense?
- Thread starter Bruno2
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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.
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.
Sam1911
Moderator Emeritus
In general the way self defense works is different from most criminal trials.
In most types of criminal trial the defendant simply has to avoid being proved guilty. In other words, if the state can't prove he was there and committed the crime, he's acquitted.
In self-defense cases it doesn't work like that at all.
Self defense is in a category known as "affirmative defenses." What the defendant is saying is "YES, I did it, and I meant to do it. BUT, for the following reasons I HAD to do it and these reasons are recognized by state law as exempting me from guilt for the crime."
Killing someone is a homicide. Doing so willfully may be manslaughter or a degree of murder. Those are all crimes, period. Even if you had a good reason to kill someone, it's still illegal to do so. BUT...sometimes the law forgives that guilt.
State laws will provide a list (a very short list) of situations and circumstances under which it is recognized that you may be forced to harm another person and possibly kill them. Someone trying to kill you, rape you, kidnap you, or commit arson on a building you're in are often about the extent of the list. If you can provide sufficient evidence that that is what was happening (or that a reasonable person in your shoes would have decided that was happening) then the state recognizes your affirmative defense claim.
Of course, this is all "rebuttable," and the state may have evidence that you were NOT about to be killed, raped, kidnapped, or immolated and no reasonable man in your shoes would have believed that you were, and may convince a jury that your claim is without merit. Then you're convicted.
You always do have the alternative to try a conventional defense: "I didn't do it and you can't prove I did it." But that's probably not a good idea because then, all the state has to do is prove that you were there and you did do it. In a self defense situation that's probably easy enough. And when they show that you did shoot, generally you can't come back and say, "oh, well, never mind, yes I did, but I had a good reason..."
In most types of criminal trial the defendant simply has to avoid being proved guilty. In other words, if the state can't prove he was there and committed the crime, he's acquitted.
In self-defense cases it doesn't work like that at all.
Self defense is in a category known as "affirmative defenses." What the defendant is saying is "YES, I did it, and I meant to do it. BUT, for the following reasons I HAD to do it and these reasons are recognized by state law as exempting me from guilt for the crime."
Killing someone is a homicide. Doing so willfully may be manslaughter or a degree of murder. Those are all crimes, period. Even if you had a good reason to kill someone, it's still illegal to do so. BUT...sometimes the law forgives that guilt.
State laws will provide a list (a very short list) of situations and circumstances under which it is recognized that you may be forced to harm another person and possibly kill them. Someone trying to kill you, rape you, kidnap you, or commit arson on a building you're in are often about the extent of the list. If you can provide sufficient evidence that that is what was happening (or that a reasonable person in your shoes would have decided that was happening) then the state recognizes your affirmative defense claim.
Of course, this is all "rebuttable," and the state may have evidence that you were NOT about to be killed, raped, kidnapped, or immolated and no reasonable man in your shoes would have believed that you were, and may convince a jury that your claim is without merit. Then you're convicted.
You always do have the alternative to try a conventional defense: "I didn't do it and you can't prove I did it." But that's probably not a good idea because then, all the state has to do is prove that you were there and you did do it. In a self defense situation that's probably easy enough. And when they show that you did shoot, generally you can't come back and say, "oh, well, never mind, yes I did, but I had a good reason..."
Sav .250
Member
That`s your lawyers job............
In Ohio.
Everywhere else, the defendant must simply prevent the state from proving that the act was not lawful self defense.
And one's lawyer cannot present evidence that he or she does not have, or evidence ruled inadmissible in court.
Sav .250
Member
I believe Florida just changed the language in that type of defense.
Un-like you I`m not a lawyer so I could be wrong.
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.
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:
- 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.
- Therefore, if the accused claims self defense, as provided in 2901.5(A):
- 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).
- 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.
- To understand what that means we need to understand what a "presumption" is.
- The presumption provided under (B)(1) is rebuttable by a preponderance of the evidence (2901.5(B)(3)).
- 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.
Here's my approach to describing the general rule.
Basically --
- 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.
- 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.
- 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.
So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.
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 legal elements necessary 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 more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.
None of the necessarily means that the defendant claiming self defense must testify. But defendant will rarely be able to make a convincing self defense case without testifying.
Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.
As Ms. Steele explains the unique character of a self defense case in Part 1:
Here's the current deal (AFAIK) in Florida:
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, in post 9. Florida has established a slightly different procedure.
In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida 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 --
- The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and
- The court would hold an evidentiary hearing on the motion; and
- The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.
- 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.
Sav .250
Member
The issue really doesn`t interest me but I guess if there was interest on your part you can look it up.
This happened very recently .
Thank you for your comment.
Apparently FL is in the process of changing their Stand Your Ground Bill and putting the SD burden of proof on the prosecution and not on the defendant.
https://www.nytimes.com/2017/03/15/us/stand-your-ground-florida.html
I know NYT, but it's all I got.
https://www.nytimes.com/2017/03/15/us/stand-your-ground-florida.html
I know NYT, but it's all I got.
Which means that you really don't have anything useful.
We've gone through this before. Don't try to understand law based on news articles. The details count, and this article, like pretty much all of them, is lacking those details.
If the Florida changes the law, someone will need to post the law, or a link to the text of the law, and we can then begin to discuss what it means and how it might work. Until then, there's nothing to discuss.
Steve, if you read the articles with just a little bit of care, you will note that the discussions now under way in the Florida state legislature have to do with the mechanisms involved in immunity hearings--pretrial hearings in which it is decided whether prosecution may proceed..
Nothing to do with the burden of proof in a Florida self defense trial.
1911 guy
Member
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?"
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?"
That bears repeating.
Yes, it does. The question shouldn't be "can I shoot?" It should be "do I have to shoot?"
As for the OP: whether the defendant has to prove SD or the 5th Amendment comes into play. In short, yes, no, and it depends.
Proving SD:
In states in which SD is an affirmative defense, the burden is on the defendant to prove SD. Otherwise, the prosecution has to disprove it, though the defendant may be required to put on at least some scintilla of evidence that it could have been SD. That depends on the state.
The 5th:
In any criminal prosecution, the 5th Amendment is in play. The defendant has an absolute, constitutional right to not testify. That doesn't make it a good idea, though. There may well be matters to which the defendant should testify to support a claim for SD, even though he has a right to not do so.
As for the OP: whether the defendant has to prove SD or the 5th Amendment comes into play. In short, yes, no, and it depends.
Proving SD:
In states in which SD is an affirmative defense, the burden is on the defendant to prove SD. Otherwise, the prosecution has to disprove it, though the defendant may be required to put on at least some scintilla of evidence that it could have been SD. That depends on the state.
The 5th:
In any criminal prosecution, the 5th Amendment is in play. The defendant has an absolute, constitutional right to not testify. That doesn't make it a good idea, though. There may well be matters to which the defendant should testify to support a claim for SD, even though he has a right to not do so.
A good read--Andrew Branca penned this around four years ago:
LawHoc
Member
Re Self Defense. As mentioned, treated differently by the various states. I can speak about New York State Self Defense.
In New York what people informally call "self defense" is formally called in the statutes "Justification." Defense of yourself or another with physical force may be justified. There is by statute (Penal Law sec 35.15) a schedule of permissible levels of force paired with levels of threat or damage. So -- to over simplify a bit -- moderate or simple force (called "Physical Force") is appropriate in some cases, while "Deadly Physical Force" -- e.g. shooting, killing -- may be used against unlawful DPF.
In New York State there are two kinds of defense -- an "Affirmative Defense" and a "Defense."
An "Affirmative Defense" must be established by the defendant by "a preponderance of the evidence." PL sec 25.00 sub 1
A "Defense" must be disproved "beyond a reasonable doubt" by the state. PL sec 25.00 sub 2
Justification (explained above) is a "defense," not an "affirmative defense." NY Penal Law sec 35. The state must disprove it at trial.
The defendant does not have to take the stand in either (or any other) situation. The defendant has no burden to establish non-guilt. Either side may establish at trial facts using any admitted evidence. Thus a defendant can always establish his position without taking the stand or putting on defense evidence -- he may establish facts and inferences from any evidence in the trial, i.e., from the state's evidence or any other.
In New York what people informally call "self defense" is formally called in the statutes "Justification." Defense of yourself or another with physical force may be justified. There is by statute (Penal Law sec 35.15) a schedule of permissible levels of force paired with levels of threat or damage. So -- to over simplify a bit -- moderate or simple force (called "Physical Force") is appropriate in some cases, while "Deadly Physical Force" -- e.g. shooting, killing -- may be used against unlawful DPF.
"A person may ... use [Deadly] Physical Force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful [deadly] physical force by such other person, ...."
NY Penal Law sec 35.15 subs 1 & 2.
NY Penal Law sec 35.15 subs 1 & 2.
In New York State there are two kinds of defense -- an "Affirmative Defense" and a "Defense."
An "Affirmative Defense" must be established by the defendant by "a preponderance of the evidence." PL sec 25.00 sub 1
A "Defense" must be disproved "beyond a reasonable doubt" by the state. PL sec 25.00 sub 2
Justification (explained above) is a "defense," not an "affirmative defense." NY Penal Law sec 35. The state must disprove it at trial.
The defendant does not have to take the stand in either (or any other) situation. The defendant has no burden to establish non-guilt. Either side may establish at trial facts using any admitted evidence. Thus a defendant can always establish his position without taking the stand or putting on defense evidence -- he may establish facts and inferences from any evidence in the trial, i.e., from the state's evidence or any other.
Of course wouldn't you still need to be sure that there is evidence in front of the trier of fact from which facts supportive of the defense of justification can be inferred? And wouldn't the more convincing that evidence is the harder it would be for the prosecution to meet its burden of proving a lack of justification?
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. Rather the defense, in order to be effective, will most usually need to be proactive to (1) attack evidence put forth by the prosecution inconsistent with justification; and (2) produce evidence which is as strongly as possible probative of facts consistent with justification.
"Someone trying to kill you, rape you, kidnap you, or commit arson on a building you're in are often about the extent of the list."
I haven't looked extensively, but my sense is that some variation of 'grave bodily harm' is also usually included, i.e. you can use deadly force to prevent being blinded, even if the attack wouldn't cause death.
FWIW, from Washington state:
9A.16.050
Homicide—By other person—When justifiable.
Homicide is also justifiable when committed either:
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.
I haven't looked extensively, but my sense is that some variation of 'grave bodily harm' is also usually included, i.e. you can use deadly force to prevent being blinded, even if the attack wouldn't cause death.
FWIW, from Washington state:
9A.16.050
Homicide—By other person—When justifiable.
Homicide is also justifiable when committed either:
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.
alsaqr
Member
Very good post. Shooting someone is the option of last resort.
If you're on trial for shooting/killing someone:
1. The police didn't believe your story.
2. The prosecutor didn't believe your story.
There's a very good chance the jury will not believe your story.
Train often. Study and fully understand the laws in effect where you live.
JeffG
Member
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.
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.
I don't think it's correct to say that homicide is presumed to be unlawful. That would imply that someone has the burden of proving that in a particular case it is not. However, every homicide could be unlawful, or have various legal consequences, and therefore warrants investigation.
- "Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."
- "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.
- A homicide can be --
- Accidental;
- Negligent;
- The result of reckless (or willful, wanton and reckless) conduct;
- Intentional without malice (evil intent);
- Intentional with malice; and
- Intentional, premeditated and with malice.
- Accidental;
- An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.
- A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.
- Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.
- The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.
- If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.
- Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.
- "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.
- Status