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?
In Ohio.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.
I'm not a lawyer and i am often wrong.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 managed to find Ohio law on this, so let's have a look.....Except in Ohio, ....
2901.05 Burden of proof - reasonable doubt - self-defense.
(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
(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) As part of its charge to the jury in a criminal case, the court shall read the definitions of "reasonable doubt" and "proof beyond a reasonable doubt," contained in division (D) of this section.
(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;
(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent.
(3) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.
(4) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.
(E) "Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.
...The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.....
...a person is presumed to have acted in self defense or defense of 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....
...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. ...
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?
...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.
In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....
Here's the current deal (AFAIK) in Florida:....But I have not heard that Florida has changed the law to place the burden of proof on the defendant.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection
We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.
Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...
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.
Which means that you really don't have anything useful.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.
http://www.flsenate.gov/Session/Bill/2017/128/BillText/e1/PDFWhich 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.
That bears repeating.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?"
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?.....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.
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?"
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.For the most part, homicide, that is, one person killing another is presumed to be unlawful. ....