All of the calls for a lower standard than "beyond a reasonable doubt"

[pipoman]

and proclamations that the prosecution's case should have resulted in conviction are far scarier than the case at hand. Even scarier than that are those who believe he should be tried again at the Federal level for the same crime. People saying that he should be charged with "civil rights violations" based on his violation of Martin's "right to life"...well there is no civil rights charge to back that assertion..the only law backing that would be murder, and since he was already tried for murder he can't and shouldn't be subject to another murder trial.

The standard of "beyond a reasonable doubt" by definition will result in guilty people going free. It happens all the time. It happens because a lesser standard would result in more innocent people being convicted. Which is the greater tragedy? I have sat across from people in prison who I believed strongly were innocent of the crimes they were convicted of even with this standard...it is a frightening, nightmarish thought to be sent to prison for a crime you didn't commit. Maybe Zimmerman should have been convicted..the same changes to our judicial system which would have resulted in conviction of Zimmerman would certainly result in innocent people gaining convictions..it simply isn't worth it IMHO..

The US has more people incarcerated than any other 1st world country on the planet..that number would escalate exponentially if the standard was lowered..

Democrats and liberals have historically held civil libertarian views.

[sinkingfeeling]

1. I'm sorry, but I just don't believe Zimmerman's account beyond a reasonable doubt.

[premium]

5. Zimmerman didn't have to prove his account beyond a reasonable doubt,

the prosecution has to prove his guilt beyond a reasonable doubt, which they woefully failed to do.

[NoOneMan]

9. Its beyond a doubt that Zimmerman murdered the boy. Both sides admit it

Now, Zimmerman is claiming an exception to the law (self-defense). Believe it or not, his camp really has to prove why his exception makes the killing legally justifiable. But since the child was black, its easy to do this because its a subjective judgement, not a black and white legal call.

When whites claim self defense, they have a dramatically better chance of acquittal than blacks do. That is fact.

[onenote]

11. Believe it or not, the burden of proof is on the prosecution

to establish in the minds of the jurors, beyond any reasonable doubt, that Zimmerman did not have a reasonable fear of death or great bodily harm at the moment he shot Trayvon.

All Zimmerman's defense team had to do to get that question to the jury was present evidence that, if assumed to be truthful and viewed in the light most favorable to Zimmerman, could lead a jury to conclude he acted out of such fear at that moment.

[cthulu2016]

60. That is, of course, bullshit

"murdered" is a word with a legal meaning.

A killing in self-defense is not murder, by definition. Murder is an unlawful killing.

[hack89]

71. Except that killing someone is not always a crime

justifiable homicide means exactly that - in the eyes of the law the shooter had a legal justification for shooting someone.

The state has to prove beyond a reasonable doubt that Z did not have a legally justifiable reason for shooting TM.

[Sunlei]

96. bet would have been manslaughter or even 2nd degree if Z had murdered by beating to death T.

[hack89]

97. Of course - unless it only takes one blow it is hard to argue a thorough beating is self defense.

It is not like the singular act of pulling a trigger - it requires multiple blows.

[XemaSab]

133. That knife cuts both ways

n/t

[pipoman]

6. Exactly the type of standard change which

would imprison hundreds or thousands of innocent people annually..if a defendant had to prove innocence beyond a reasonable doubt..

[sinkingfeeling]

14. In the majority of states, the law is written so that if one claims 'self-defense' the

defendant then has the burden of proof.

http://en.wikipedia.org/wiki/Affirmative_defense#Burden_of_proof

Affirmative defenses' burden of proof is on the defendant to prove its allegations either by the preponderance of the evidence or clear and convincing evidence, as opposed to ordinary defenses (claim of right, alibi, infancy, necessity, and (in some jurisdictions, e.g., New York) self-defense (which is an affirmative defense at common law)), for which the prosecutor has the burden of disproving beyond a reasonable doubt.

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.[6] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence.

Also:
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/george_zimmerman_and_self_defense_why_it_was_too_easy_for_him_to_get_off.html

[COLGATE4]

17. The D only has to prove enough facts to get it

before a jury (low standard of preponderance of the evidence). Once that is done it's up to the P to prove that it wasn't self defense beyond a very high standard - reasonable doubt. Ohio is the only state that doesn't to it that way.

[sinkingfeeling]

19. That's the point.. low standard to claim 'self defense'. Then the P has

to 'prove' a negative.

[COLGATE4]

54. It's not proving a negative. It is up to the State

to prove beyond a reasonable doubt (not beyond all doubt) that Z wasn't in fear of death or great bodily injury.

[Morganfleeman]

31. Don't always believe Wikipedia

Especially on legal issues. It is the exact opposite with respect to self defense (for insanity etc., it's correct). In the overwhelming majority of states, the prosecution has to prove the defendant did not act in self defense beyond a reasonable doubt. I think Ohio is the only state where the law is otherwise.

[hack89]

34. That is no longer the case in America

Ohio is the only state that place the burden on the accused for self defense. In most states, self defense is a justification argument - the burden never shifts from the prosecution. The accused merely has to make a prima facia argument for self defense. He does not have to prove it. The state then has to prove that the accused had no reasonable justification for self defense.

Here is a good example from Delaware:

§ 461. Justification -- A defense.

In any prosecution for an offense, justification, as defined in §§ 462-471 of this title, is a defense.

11 Del. C. 1953, § 461; 58 Del. Laws, c. 497, § 1.;

§ 464. Justification -- Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

http://delcode.delaware.gov/title11/c004/index.shtml

from a Delaware Trial Handbook

Under the criminal code, there are several defined circumstances where the use of force by an individual will be deemed justified and so constitute a defense to a criminal prosecution.70 For example, use of force is justified when it is required by law.71 Presumably, this is limited to the degree of force necessary to perform the act required by law. Further, individuals with special responsibilities for the care, discipline or safety of others, such as children and incompetent people, may use a limited amount of force to safeguard and promote the welfare of such persons.72

Justification is not an affirmative defense placing the burden of proof on the defendant. Instead, the defendant must only come forward with some credible evidence of the existence of facts making the act justifiable. If the defendant does so, he or she is entitled to have the matter considered by the jury on the basis that the burden is on the prosecution to prove absence of justification, and if the defendant’s evidence raises a reasonable doubt as to justification, the defendant is entitled to a judgment of acquittal.

Self-Defense. Perhaps the most common justification is self-defense. Use of force in self-defense is justified where the defendant honestly believes that force is immediately necessary for self-protection against the use of unlawful force by another person on the present occasion.77 The defendant must show that he or she believed that force was necessary and that his or her response was an immediate reaction to a present necessity.78 This is a subjective test.79 Since the time available for deliberation in these circumstances is generally limited, the defendant may estimate the need for employing force in self-defense under the circumstances as the defendant believed them to be at the time, without retreating, surrendering possession or doing any other act that the defendant has no legal duty to do or abstaining from any lawful action.80

The use of deadly force in self-defense is justifiable only if the defendant believed that such force was necessary for self-protection from death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.81 Deadly force is not justified, however, if the defendant was the initial aggressor and had the purpose of causing death or serious physical injury.82 Nor may a defendant use deadly force if the defendant can retreat to a place of complete safety.83 A defendant, however, is not obligated to retreat from his or her home or place of lodging, whether or not the defendant was the initial aggressor.84 A defendant is also not obligated to retreat from his or her place of work, unless the defendant was the initial aggressor.85

http://www.delawgroup.com/dth/?page_id=155

[cthulu2016]

58. I assume this is a joke.

Surely you know that reasonable doubt is the bar for the prosecution, not the defense

[sinkingfeeling]

61. Sure, but it doesn't make Zimmerman's story any more believable.

[Dawson Leery]

2. Ohio's self defense law is the model.

Once you engage someone with the intent which Zimmerman had, you lose your right to self defense.

[Just Saying]

8. +1

Ohio is one of only two states (Delaware is the other) where a defendant must prove self-defense with a preponderance of the evidence.

The laws in FL and elsewhere give too much weight to a defendant's version of events. Innocent until proven guilty BUT if you've killed someone you should damn well have a burden to prove your story.

Zimmerman's story was crap, but the law in FL let him walk. It's time for Americans to consider changes to self-defense laws as well as legalized murder laws like SYG. It's time for the reasonable and responsible to take charge.

[onenote]

13. The problem with putting the burden on the defendant by a preponderance

is that it means that where the jury finds that defendant's claim that he/she acted in legitimate self defense is equally plausible as the prosecution's evidence that the defendant did not act in legitimate self defense, the jury would be instructed to convict. No one should be sent to jail when the state cannot even prove that their version of events is more likely than the defendant's version.

A solution that I have suggested might be worthy of consideration (although I'm not prepared to endorse it) would be to keep the burden to counter a claim of self defense on the state, but lower it a preponderance standard. That way, in the case of a "tie" the defendant is acquitted.

[Just Saying]

42. You're missing the point

Which is that in most states the defendant doesn't have to prove anything even thought he took a life. That's where the presumption of innocence gets sticky. He's not innocent of killing someone, but need only say the magic word "self-defense" and his version is automatically deemed true and the prosecution has to prove a negative. This law makes it do that the killer is presumed innocent at the same time presuming the victim guilty. I don't know how anyone can defend that.

It's not right. The law in Ohio has it right and the USSC upheld it. Other states should follow them unless they want murderers to walk.

[onenote]

64. You are misunderstanding how the law works

The defendant who wants to raise self defense and have that defense heard by a jury has an initial "burden of production" (also known as the burden of "going forward&quot . That burden is pretty low, but it still has to be met. It can be met if there is evidence (which could be physical evidence, testimony from a third party or testimony from the defendant, and it can evidence submitted by either the prosecution or the defense) that, when assumed to be true and viewed in the light most favorable to the defendant would, in the court's judgment, allow a jury to find that the defendant had acted with a reasonable fear of imminent death or imminent great bodily harm.

A defendant that simply asks for the jury to be instructed on self defense but that neither puts in any evidence, or can cite to any evidence from which a jury could conclude it was self defense, won't get that instruction. Or if the only evidence that the defendant can cite is manifestly absurd, the judge need not necessarily allow the issue to go to the jury. It is sometimes a close call. For example, if a defendant admits shooting the victim while the victim was in a coma, and there is no other evidence from which a jury could conceivably conclude that a reasonable person would have feared immiment death or bodily harm from a person in a coma, the case won't go to the jury. But if the victim was merely sleeping and the defendant was in his or her own home and the defendant testified that the victim had threatened to kill the defendant before falling asleep and a gun was found in the victim's pocket, a court could and probably would allow the case to go the jury to decide whether, under those circumstances, it believed the defendant's version of events and whether it believed a reasonable person would have feared imminent death or bodily harm from an armed, but sleeping victim.


In my post I suggested that the burden of proof should remain on the state because no one should go to jail if it is equally likely that the evidence supports justification as not. Go back to my sleeping victim case. If the only evidence is that the victim had fallen asleep before threatening the defendant and it turned out the victim had a gun in his/her pocket, and the prosecution admitted those facts, but argued that, beyond any reasonable doubt no reasonable person would fear imminent harm from a sleeping person, the jury could legitimately decide that the prosecution had met its burden of proof and convict. Other facts might sway the jury to reach a different conclusion: if the defendant admitted that they were not aware that the victim had a gun in his/her pocket the outcome might be different than if the defendant argued that he/she knew about the gun and the prosecution could not convince the jury to disbelieve the defendant.

Self defense cases can be hard cases because there always is a subjective element and the evidence often consists of uncorroborated statements or conflicting witness accounts. Once there is evidence in the record that if assumed to be true would allow a fact finder to conclude the defendant acted with legitimate justification, it is not too much to ask that the state convince the jury that its version of what happened and what was reasonable under those circumstances is more plausible than the defendants version.

[JVS]

22. "The laws in FL and elsewhere give too much weight to a defendant's version of events."

How do you come to that conclusion? With the burden on the state, the defendant doesn't even need to provide a version of events. Which is probably a good thing, considering that defendants have an obvious interest in the outcome of the trial. The placement of burden on the state makes it possible for the jury to give absolutely no weight to the defendant's version of events and focus purely on the prosecution's version of what happened and the evidence to support it.

[Just Saying]

47. If there's no weight on Z's version then he's guilty of murder.

The defendant doesn't have to say anything or take the stand-I get that. But in cases like this, this defendant took a life and to be presumed innocent all he had to say was "self-defense". Considerable weight was put on just his word that it's self-defense. There's no obligation to prove his story as to why he killed someone at all-just his word. That's wrong. He should have some burden to prove it. Sorry, but he's not innocent-he took a life and he should have to justify it not just be able to claim it as the law says in Ohio. Otherwise, any killer can claim this as long as no one saw them do it. These laws put no value on human life.

Frankly, his story was bunk but he got away with it because the only other witness was the kid he shot and killed.

[hack89]

35. You are wrong about Delaware.

§ 461. Justification -- A defense.

In any prosecution for an offense, justification, as defined in §§ 462-471 of this title, is a defense.

11 Del. C. 1953, § 461; 58 Del. Laws, c. 497, § 1.;

§ 464. Justification -- Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

http://delcode.delaware.gov/title11/c004/index.shtml

from a Delaware Trial Handbook

Under the criminal code, there are several defined circumstances where the use of force by an individual will be deemed justified and so constitute a defense to a criminal prosecution.70 For example, use of force is justified when it is required by law.71 Presumably, this is limited to the degree of force necessary to perform the act required by law. Further, individuals with special responsibilities for the care, discipline or safety of others, such as children and incompetent people, may use a limited amount of force to safeguard and promote the welfare of such persons.72

Justification is not an affirmative defense placing the burden of proof on the defendant. Instead, the defendant must only come forward with some credible evidence of the existence of facts making the act justifiable. If the defendant does so, he or she is entitled to have the matter considered by the jury on the basis that the burden is on the prosecution to prove absence of justification, and if the defendant’s evidence raises a reasonable doubt as to justification, the defendant is entitled to a judgment of acquittal.

Self-Defense. Perhaps the most common justification is self-defense. Use of force in self-defense is justified where the defendant honestly believes that force is immediately necessary for self-protection against the use of unlawful force by another person on the present occasion.77 The defendant must show that he or she believed that force was necessary and that his or her response was an immediate reaction to a present necessity.78 This is a subjective test.79 Since the time available for deliberation in these circumstances is generally limited, the defendant may estimate the need for employing force in self-defense under the circumstances as the defendant believed them to be at the time, without retreating, surrendering possession or doing any other act that the defendant has no legal duty to do or abstaining from any lawful action.80

The use of deadly force in self-defense is justifiable only if the defendant believed that such force was necessary for self-protection from death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.81 Deadly force is not justified, however, if the defendant was the initial aggressor and had the purpose of causing death or serious physical injury.82 Nor may a defendant use deadly force if the defendant can retreat to a place of complete safety.83 A defendant, however, is not obligated to retreat from his or her home or place of lodging, whether or not the defendant was the initial aggressor.84 A defendant is also not obligated to retreat from his or her place of work, unless the defendant was the initial aggressor.85

http://www.delawgroup.com/dth/?page_id=155

[Just Saying]

38. Someone posted about DE yesterday

I'll to look up their post.

[premium]

3. Great thread,

and I agree with you, some of the "suggestions" I've seen in the last couple of days make my skin crawl and make me shudder with fright.

[NoOneMan]

4. When a black man is dead, its easy to subjectively find fantasy as reasonable

[galileoreloaded]

7. I believe in the constitution!!!!! Except when I don't. Nt

[Quantess]

10. "scarier", "scarier", "frightening", and "nightmarish"

Calm down, everything will be okay. It's just a discussion.

[pipoman]

136. Just a discussion

unless of coarse you know someone serving 20 years on a conviction you believe strongly is erroneous..someone whose children are living without a father, wife without husband, and parents without their child..I have had several nightmares of myself in the position of hearing a guilty verdict on a crime I didn't commit..real lives of real people...scary, frightening, and nightmarish it is..

I also know of people, one in particular, who I know are guilty of a double, torturous (2 days of torture according to the coroner), murder of a 17 year old gay couple. He has never been charged for lack of evidence..the police believe he did it too..they hope for a break in the future..

[Frytruk33]

12. Well said!

I too am horrified by all these posts. People are letting their emotions cloud their judgement in a frightening manner. Bottom line is no matter how sad Trayvon's death is, the prosecution didn't even come close to proving their case.

[Bettie]

15. Self-defense should have a greater burden of proof

than "I was scared" being said by the guy who killed someone.

If all it takes is those three words, then we're going to see a lot more killers getting off without consequences.

[DCBob]

23. agreed.

Its a different animal from a regular criminal case.

[DCBob]

16. In cases of "self defense" the "crime" has already been determined proven "beyond reasonable doubt".

We have a dead person, a weapon, and the killer who admitted it. Thats been proven "beyond reasonable doubt". The part in question is how did it happen and can the person be cleared of the "crime" with a justifiable self-defense claim. The burder of proving that claim should be on the killer, imo. After all, the victim cant defend themself and the only witness in most of these cases is the killer who of course is motivated to describe the events in their favor. Why give the advantage to the killer and not the victim?

[COLGATE4]

20. The burden of the State proving beyond a reasonable

doubt is the standard in 48 (or 49?) states. nt.

[DCBob]

21. yeah, and I think its wrong.

[Lee-Lee]

27. If a woman has someone attempting

to rape her, in an area with no other witness, should she have to worry that he will go to jail for defending herself?

Say it was a date. They go to her home after, he pushes things too far, she says no. He attempts to rape, she grabs a knife off the counter and stabs him.

She has no proof it went down that way. The police and prosecutor decide she wanted to kill an lured him into her home to do it.

If the prosecutor in her area is a hard core righty, and he doesn't like her, should she have to prove it was self defense beyond a reasonable doubt? Odds are with no witness with the standards flipped the prosecution wins most of the time in a case like this.

That is scary.

Think hard about the chilling effect that reversing or changing the standard of proof of self defense would really have. Because not everybody who uses that claim is a Zimmerman, by a long shot.

[DCBob]

39. If her story is consistent and the evidence backs it up, then most likely she walks..

even if the burden of proof is on her.

Why is the assumption of guilt always placed on the dead person in these cases? At the very least it should be even.. no one should be assumed guilty or innocent. Let both sides make their case and let the jury decide without the "beyond reasonable doubt" requirement on either side.

[X_Digger]

48. Not if you flip the burden, no.

Anything up to a tie means the state wins in that scenario. Which could be because there was no evidence other than the defendant's word that it was self-defense.

Should a person being attacked or raped be forced to wonder if they've been beaten or raped "enough" to satisfy a court before defending themselves?

[DCBob]

55. I would say the victim wins..

And why would there be no other evidence? There is always evidence of some sort.

I would also be ok with just taking the burden of proof out of it entirely. Just have a jury decide fairly without any requiremenst either way. That seems the most fair way to deal with cases like this.

[X_Digger]

56. "There is always evidence of some sort." -- this is a result of CSI / NCIS / Law & Order..

Too many people think that forensic science is more advanced than it really is, or that there'll always be that one bit of forensic science in EVERY case that swoops in, deus ex machina style (literally in this case, with the 'machina' being a mass spectrometer or somesuch), and proves that the defendant is guilty, or that another person is the murderer/rapist/child abuser just in time to avert a travesty of justice.

Find a criminal defense lawyer in your extended circle of friends, and ask them about that statement.

You'll get quite a surprise.

No, in real life, prosecutors are forced to put forth circumstantial cases, or cases with conflicting witness testimony, with shaky or disputed physical evidence, or damned little evidence at all. Most cases never get brought, and many of those that do are dismissed one way or another before there's a verdict.

A real justice system is a hell of a lot different than Hollywood / TeeVee portrays it.

[DCBob]

62. Well in your attempted rape case described above there would have to be some evidence.

What does attempted rape mean? What exactly did he do to make her think he was attempting to rape her? Rip some of her clothes off? Then the ripped clothes would be evidence. Grab her around the neck? Some marks on her skin would be evidence. Forcibly kiss her? Smudges of lipstick would be evidence. There would always be something... If not then I would suspect her story is fake.

[X_Digger]

65. "There would always be something" -- not true.

The state could argue that it was consensual, "wild" sex. With the burden shifted, the defense would have to prove that it was not.

Seriously though, go talk to a defense attorney, or a prosecuting attorney. It's vanishingly rare to have such a clear cut case as you imagine, or as the popular media portrays.

[DCBob]

67. As I said I would rather just drop the burden of proof entirely..

and use the Ohio model.. "preponderance of evidence". I think that the best solution.

[X_Digger]

68. That *is* a burden of proof (aka, "50%", "more likely than not", etc.) n/t

[DCBob]

69. Drop the "beyond reasonble doubt" burden of proof.

"preponderance of evidence" is not too much to ask when we have a dead person.

[X_Digger]

70. Even for a person who honestly defends themselves?

I get back to my original question, should a person have to let themselves be beaten or raped or stabbed, just so that there'll be a preponderance of evidence before defending themselves? You would ask that a person make that cold calculation in the midst of an attack?

*shakes my head*

[DCBob]

76. No... of course not.. and I doubt anyone would think that far ahead in situation like that.

There are two individuals involved in crimes like this.. a killer and a dead person. Why favor the killer?

[X_Digger]

80. That's how our justice system works, generally.

It's ingrained into the fabric of the system.

http://en.wikipedia.org/wiki/Blackstone%27s_formulation

"It is better that ten guilty persons escape than that one innocent suffer",

...as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

[DCBob]

82. I dont question that at all in a standard criminal case.

Its only in self-defense cases where things get murky.. imo.

[X_Digger]

95. Most cases are murky, that's what folks seem to not realize.

This case is the exception, not the rule. And to change the rule based on the exception? Is throwing out the baby with the bath water.

[DCBob]

102. The concept of "beyond reasonable doubt" is not murky at all in normal crimnal cases.

I think we all agree on that. Its cases of self-defense is where that provision is being questioned and needs to be revisited.. imo.

[X_Digger]

105. As a standard for *prosecution*? All good. For *defense*? Nope.

You're not going to convince many people that turning a basic tenet of US law on its head is a good idea.

(You do realize that 'beyond reasonable doubt' is *more* strict than 'preponderance of evidence', right?

*sigh*

[DCBob]

116. I think the Ohio model in cases of self defense make the most sense.

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.

http://codes.ohio.gov/orc/2901.05

[X_Digger]

118. And I don't. (and 49 other states agree) n/t

[DCBob]

119. You forgot to mention the gun lobby also agrees with you.

[X_Digger]

121. Okaaay...

The 'gun lobby' must've gotten to the Florida Democratic Governor Askew.. in 1974..

[DCBob]

122. Unfortunately alot of Democrats have been taken hostage by the gun lobby.

[X_Digger]

123. That's a bit tinfoil-ish when we're talking laws anywhere from 40-120 years old.

ie, before there *was* any such thing as a "gun lobby".

[DCBob]

124. You need to read more if you think the NRA hasnt affected self defense laws in this country..

Start here..

http://www.motherjones.com/politics/2012/06/nra-alec-stand-your-ground

[X_Digger]

125. Did you lose our train of thought? Re burden in proving self-defense?

Or did you decide to throw in a red herring on purpose?

[DCBob]

127. I thought we were talking about how the NRA has affected self defense laws.

silly me.

[X_Digger]

128. Feel free to review this thread, from the OP down.

When you catch up and have something germane to the discussion, feel free to join back in.

[DCBob]

131. Not really interested in rehashing all that.

Last edited Wed Jul 17, 2013, 10:41 PM - Edit history (1)

I thought your comment "I disagree" was the end of it.

Ciao.. have a nice evening.

[stevenleser]

41. That's a good argument against it. The other side of that is, date rape happens so often that

I dont think reasonable people would have trouble believing the woman did it for the reasons she contends. Aggravated Assault or killing generally has a motive. A woman on the first couple of dates with someone who tries to date rape her generally has no other motive for attempting to hurt/kill the man. As a juror that should be an easy acceptance of her self-defense contention.

I think it is reasonable that if you assert an affirmative defense that there is some burden to prove it. Doesnt mean it has to be prove beyond a reasonable doubt, but some standard should be used.

[Lee-Lee]

46. Her story doesn't have to be just plausible

It has to be believed beyond a reasonable doubt it we adopt the standard some here are advocating.

That's a very high standard. Very high.

You are letting your own bias cloud how it goes- but all the prosecution would have to do is raise a little doubt.

Not a good idea.

[stevenleser]

50. I'm not advocating that standard. We're discussing 'better possible solutions'

the legal system provides for majority rule in most sentencing hearings (except death penalty) and for civil litigation cases so it could be as simple as the jury first has to decide whether they accept the person's contention that it was self defense. If 50% of them vote that way, then the affirmative defense is accepted and deliberations end with a not-guilty verdict. If they do not accept it, then the deliberations proceed and could still end in a not-guilty verdict if reasonable doubt remains.

[Just Saying]

52. In Ohio the standard for a defendant

Is preponderance of the evidence. That's what a defendant must prove to get self-defense.

Frankly, if you take a life I believe you should have some burden to prove it was justified under any circumstances. We're not talking about a traffic accident or misdemeanor here. We're talking about murder and a person who pulled the trigger shouldn't get a presumption of innocence while the victim gets a presumption of guilt. But in most places that's exactly how it goes down.

I know in Ohio and likely other states, rape victims have shield laws so that the accused cannot make them the guilty party by bringing up their sex life or other irrelevant things. Would that murder victims were also given some respect.

[DCBob]

63. I think Ohio has it right.

"preponderance of the evidence" is the way to go... imo.

[cthulu2016]

114. You are mistaken about what the word "crime" means

And so there's no sense to what you are saying. You say a crime is already proven where no crime is proven... there's no where to go from there. No rational chain of thought can proceed from such a starting point.

Killing a person is not a crime, intrinsically.

The unlawful killing of a person is a crime.

A crime is defined by statute, not by however people outside a legal context might use the term.

I think charging money for tickets to see the film BATTLESHIP is a crime... but is obviously not A Crime.

Most of the horrible train-wreck of the last few days has been people talking about law while freely switching between legal english and vernacular english to suit their purpose of the moment.

.

[DCBob]

117. No.. thats why I put it in quotes.. of course its not a crime until the case is determined..

However, the question of who killed the person is a done deal. That part has been proven beyond a reasonable doubt. The only part unproven is whether the killer had a legitimate reason for doing it and thats the part that should not be subject to "beyond reasonable doubt" .. imo.

I like the Ohio model for self defense cases.

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.

http://codes.ohio.gov/orc/2901.05

[Punkingal]

18. Z got out of his truck and pursued...

Leaves no doubt in my mind he was he aggressor.

[redgreenandblue]

24. I don't think the standards should be lower. I think there was no reasonable doubt in this case.

Any scenario painting Trayvon Martin as the aggressor was deeply implausible.

As for prosecuting people twice for the same crime, i.e. leaving the possibility of overturning a "not-guilty" verdict open, I do not see that as problematic per se. Other countries do it: If new evidence surfaces, cases can be re-opened. The US follows the anglo-saxon model which disallows this, but other systems are not necessarily worse.

I have found the principle of "once not-guilty, always not guilty" weird way before the Zimmerman case.

[NoOneMan]

28. The problem is that people can be persecuted with the legal system

So this approach was considered the lesser of two potential evils (guilty people walking vs innocent people persecuted)

[JoePhilly]

25. Zimmerman killed Martin.

Martin told his dad he was going to the store and would be right back.

Martin went to the store.

Martin calls a friend on his cell phone while walking back towards his father's home.

Zimmerman sees Martin.

Zimmerman said Martin was a "suspect", but there was no crime that evening.

Zimmerman said he was sick of "these punks" getting away.

Zimmerman followed Martin after being advised by the police not to.

Martin tells friend that a person he does not know is following him.

Martin attempts to evade Zimmerman.

A confrontation occurs. Zimmerman, who had said these "punks" always get away, claims Martin attacked him for no reason. Martin who is dead, is unable to say anything, let alone argue that Zimmerman tried to confront and detain him.

Zimmerman shoots Martin, and Martin is dead.

There is no need to lower the standard. Just apply it.

Zimmerman's actions move directly towards a confrontation, Martin's actions led away from one.

Martin is dead because of Zimmerman's actions.

[Dreamer Tatum]

57. He killed him. By the law, he didn't murder him.

Had the original charge been manslaughter, Zimmerman may well be in jail now.

But Corey overcharged, and here we are.

[JoePhilly]

81. Corey should have worked up, and then through, Manslaughter.

He could have easily proved manslaughter, and then said he was going to bring forward the remaining facts needed for Murder 2.

The defense would have struggled to argue that Zimmerman's actions did not lead directly to Martin's death.

[Dreamer Tatum]

87. As much crap as I may take for this, it was manslaughter, not murder. nt

[kenny blankenship]

26. "Democrats and liberals have historically held civil libertarian views."

And that's all in the past, along with the rest of history.

Of course the full history is bit more muddled than that, but I know the phase of history you're talking about. It was a stretch of time in which being a Democrat was better than being a Republican and it's worth remembering now, even if the current Democratic Party dishonors and shits on that memory every day.

[NoOneMan]

33. This entire argument is a false dichotomy

Either you agree with the verdict or you are against civil liberties.

The fact of the matter is we are dealing with an area of the law (self-defense) that rests upon subjective interpretations, and therefore, has an unequal application on blacks and whites in a prejudice country. In reality, allowing a racist society to subjectively decide which victims death's are legally justified (by how scary we perceive them) is leading to civil rights violations in itself. It is very clear that "self-defense" claims heavily favor white defendants, and in doing so, allow the "justifiable" murder of minorities in the subjective eyes of a jury.

[WinkyDink]

29. Who is making such a call?

[rrneck]

30. A miscarraige of justice is a poor reason to place the burden of proof on the defender.

Unless there are witnesses there the only account of the shooting will come from the victor. He or she can make up any story they want. The phrase "I couldn't outrun him" will be replaced by "I was afraid".

The Zimmerman case was unusual because Martin wasn't doing anything wrong and there is evidence that Zimmerman actively perused him for no reason. Zimmerman provoked the confrontation and subsequent ass whipping which gave him the ability to claim self defense. Martin should have run home but it appears he came back and became the aggressor, although there is no definitive proof surrounding the final confrontation. The survivor created a narrative to conform to the law. If the law had been different, the narrative would have been different.

Laws regarding what one is supposed to do at the moment of self defense are a strategic solution to a tactical problem.

[pipoman]

113. I agree

and even if "Martin should have run home but it appears he came back and became the aggressor" this didn't happen, it is plausable that it could have happened, all things considered, which raises 'reasonable doubt'..

People...the public is so far removed from the reality of their own courthouse they see this as something it isn't..

[displacedtexan]

32. tHis jury chose to ignore DNA evidence.

There was no "reasonable doubt" threshold for them to overcome. Reasonable doubt only applies, IMHO, if there is a total lack of forensic evidence.

[ksoze]

36. Ignored what DNA evidence?

I thought there was none as the body was not properly maintained (hands bagged, sat in rain, etc.).

[pipoman]

111. Link?

[displacedtexan]

120. Here you go.

http://www.washingtonpost.com/blogs/post-partisan/post/george-zimmermans-dna-problem/2012/09/30/40605a58-0a46-11e2-a10c-fa5a255a9258_blog.html

[pipoman]

130. As I read that I was thinking back 25 years

and know my assessment would have been similar to the authors..after working under a retired special investigator for the state attorney general who mentored me for 12 years in criminal defense investigation..this DNA report wouldn't phase a good defense attorney..it would be like the pennies from heaven DNA report..and the prosecutor would know that..a criminal case is a bunch of little things put together..both sides present all of their little tales and truths..the opposing side attempts to undermine the assertion being made. Some of these little pieces are alarmingly compelling...most are not compelling on their own but in combination with other pieces may tip the scale. The assistant of the lawyer usually counts the pieces and track if the lawyer had addressed each piece to the best ability. In the end it is usually 2 or 3 small pieces which convict or acquit..the prosecution didn't have enough pieces..defense had a couple more..

Keep in mind this was a year ago. Kendall Coffey, former U.S. attorney for the Southern District of Florida. stated correctly, “This is nobody’s silver bullet,” he said. “All of these things standing alone are explainable. But when assembled at trial, they can provide meaningful support for the prosecution’s case.”

I am sure Coffey thought the prosecution would have a case to present..

[stevenleser]

37. Agree in general, but am open to the idea that in an affirmative defense, you have to prove what you

contend.

It's one thing if you say "I didn't do it." Then yes, the burden is all on the prosecution.

But if you say "I did it, but I had one of various legally exculpatory reasons for why I did it" then I think it is reasonable for society to ask you to prove that is why you did it.

[onenote]

40. The problem, as noted above, is that if the burden is on the defendant

then the defendant goes to jail even if the evidence shows it is equally likely that it was legitimate self defense as it was not legitimate self defense.

As noted above, I think (but would be interested in hearing contrary views) that a better solution would be to leave the burden on the state, but reduce it to preponderance of the evidence. That way, in the case of a "tie" the defendant doesn't go to jail. It is not too much to ask of the state that they show that is more likely than not that a killing was not justified in a case where the defendant has met his or her minimal burden of going forward by providing evidence that, if assumed to be truthful and when viewed in the light most favorable to the defendant, would support a juror finding legitimate self defense.

[stevenleser]

44. I think we are on the same page. I dont think the person trying to assert an affirmative defense has

to prove it beyond a reasonable doubt, but some basic level of proof should need to be offered and I would agree that a 'tie' would go to the defense.

Note what I wrote in the thread concerning self defense in rape situations. A woman going out on one of the first few dates with a man probably has no other motive for assault or killing.

[hack89]

43. What if it really was self defense but there are no witnesses?

how do you prove self defense in that case?

Given the choice between freeing a guilty person or jailing an innocent one, which would you choose?

[stevenleser]

45. I don't think should be the same level of 'proof' the prosecution needs to meet to prove guilt.

As I noted above, 50-50 should go to the defendant.

[hack89]

49. I think the present standard is adequate

the accused has to make a prima facia case that lays out a plausible case for self defense. He has not burden to prove anything. The prosecution has to prove there was no justification for self defense.

In most cases there are witnesses - it should not be hard for the state to make it's case. In situations where there are no witnesses or evidence then the benefit of the doubt goes to the accused - asking them to do the impossible in order to stay out of prison is not justice.

[stevenleser]

51. I don't think that it is. I think the system doesn't deal with affirmative defenses well and not

just because of this recent case.

Particularly when the self defense ends in a death, you effectively have a trial to judge a dead person's guilt. Not surprisingly, the dead person has trouble effectively assisting in their defense.

[hack89]

53. In the absence of any evidence, the doubt needs to go to the accused.

the accused can't conduct his own investigation.

[DCBob]

72. The "absence of evidence" is evidence in of itself.

[hack89]

74. That makes no sense

what does the absence of evidence prove?

[DCBob]

77. I didnt say it proved anything.. but its "evidence" to be considered.

[hack89]

78. But then lack of evidence means automatic conviction

if the accused has the burden of proof. The state doesn't even have to make a case. I don't call that justice.

[DCBob]

79. Not necessarily.. its up to the jury to decide if it suggests guilt or not.

[DevonRex]

91. The lack of any of George's DNA on Tray's hands is evidence that refutes

George's story IMO. When there was still blood all over George, his blood on the gun, there would have been blood or skin cells on Tray's hands or under his fingernails if the confrontation had happened the way George said it did.

It rained on both of them. George's head was much more exposed to the elements than the skin underneath Trayvon's fingernails. No blood, no skin cells from George. No fibers from George. No nothing from George. Therefore it did not happen the way George said it did.

[ksoze]

98. Lack of DNA is nowhere near the same as having DNA

It opens up so many variables and the as shown at trial, the body was mishandled for evidence collection by SPD.

[DevonRex]

99. No. The pictures at the crime scene showed nothing on Trayvon's hands.

No blood. But George's face is bloody. And Trayvon had supposedly broken his nose, then hand his hands over his nose and mouth. No blood. His hands weren't swollen or scratched or red like they'd hit someone or struggled with someone. Just perfectly normal.

[ksoze]

100. That's the problem. Those pictures should have shown bags on his hands

so the issue of why there is nothing can be proven better. Too much opening for how evidence was washed off, etc.

[DevonRex]

108. Good grief. They take pictures before they put the bags on. I was in LE.

They don't necessarily take pictures to document when the bags were put on. Some do, some don't. As far as evidence being washed off, George stood in the same rain. It wasn't a downpour, by any means. Any fool can see that. Nobody at the crime scene took a nail brush to Trayvon's fingernails. Neither did the ME. Trayvon's body was processed just like any other. That's a really stupid defense tactic.

And, let me tell you, I'm no sucker for the prosecution, either. I would have voted not guilty on OJ because of missing blood from a vial and and suddenly-appearing blood droplets at the crime scene on the second day. And because a CS tech had taken that vial of blood TO the crime scene before those blood droplets were found.

And I would have ruled out Furman's going over the wall at OJ's house the night of the murder, unlike Judge Ito did.

The defense will always try to say the crime scene wasn't handled well. But that doesn't mean it's true. No crime scene can be handled perfectly because they're not done in a laboratory and because humans are in charge. They're done in whatever location the offense took place. That's exactly why they take scrapings from underneath the fingernails. In a furious fight such as Zimmerman described, in which Trayvon had George's head in his hands, slamming it into the concrete, and after breaking his nose, and later holding his hand over his nose and mouth and smothering him, and then going for George's gun, Zimmerman's DNA WOULD have been under Trayvon's fingernails. It could not have been washed away by a light rain like they had that night. Hell, even the exposed blood right on top of Zimmerman's head was still there. So stuff UNDER fingernails would have been there.

[pipoman]

110. Easier said than done..

I believe someone defending themselves, who can't prove they feared for their life because there is no witnesses, shouldn't go to prison. I don't know what the answer is, but back in the days of a 'duty to retreat' people who were completely law abiding got up in the morning, had their coffee, went out into their day as usual, were victimized, fought back ending in the attacker's death, then spent the next 2 or 3 years and every dime they had, their home, and the kid's college fund defending themselves based on the unlawful act of another..a tragedy too..

[stevenleser]

112. Motive helps that a lot. In Zimmerman's case, he clearly had it in for these 'others' who were

walking through and in his mind victimizing his neighborhood.

I suggested above that in an affirmative defense, 50% of the jury should first have to deliberate and vote on whether they believe his affirmative defense before it goes to a regular vote to determine guilt or innocence. If 50% believe the affirmative defense, the deliberations stop and he is declared not guilty. If they don't, they keep deliberating and the person still may be found not guilty, but the affirmative defense is out the window.

Perhaps an entire hearing on the affirmative defense with the jury ruling beforehand. Those are just some ideas.

[pipoman]

132. Maybe with a supporting witness or two..

I didn't hear of anyone who knows Zim who would say he is a racist...he didn't use a racial slur..a bunch of disjointed tiny pieces leaves too much room for doubt..it wouldn't even come close to convincing a reasonable person beyond a reasonable doubt that he was a racist..so alas, in the absence of witnesses stating he was/is a racist, and no real indication on the tape, there wasn't a "hate crime" case to be made..it had no weight or bearing on the jury's decision..

I am curious the number of ambiguous evidence cases are actually not charged or lost based on the current method..statistical analysis..there may be a better standard, but the old standard of 'duty to retreat' had a big problem with horrible cases of life long law abiding people financially drained and/or imprisoned for defending their own life..and guess which racial demographic made up the lion's share of these life destroying prosecutions..and after the prosecution, the family of the offender would make the victim continue paying..it wasn't all that..

I don't know the answer either..

[stevenleser]

135. He was his own worst witness with what he said to the 9/11 folks IMHO...

... that indicated a real grudge against whatever Trayvon represented. "Those people" going through his neighborhood. To me that was motive. He was fed up with "the other" walking through his neighborhood and committing crimes and he was going to start confronting "the other". I think his affirmative defense fails after he calls the police but doesn't leave the situation to them and when it was determined that Trayvon had a legitimate reason to be in the neighborhood and had no weapon.

But the point you make in general is a good one and I guess the key is how can we do better at discerning which affirmative defenses are real and which ones are bullshit. If we can do that we can protect the innocent and punish the guilty.

[mstinamotorcity2]

59. Not a lower standard

an equal one.

[etherealtruth]

66. ^^^ Best response ^^^^

Most intellectually honest response

[mstinamotorcity2]

84. thank

you

[onenote]

73. What exactly do you mean?

For example, let's say that the defense and the prosecution each put forward evidence. The jury concludes that, based on this evidence, it is equally plausible that the defendant has a legitimate claim of self defense as it is that he does not. What is the result? Does the defendant go to jail even though the state hasn't been able to show that it is more likely than not that the defendant acted without justification? I think that would be an unjust result. A "tie" in a criminal case should never result in someone ending up in jail.

This is why I have offered up as a suggestion that the burden of proof remain on the prosecution to establsh that defendant did not act with legitimate justification, but lower the standard of such proof to "preponderance" so that the prosecution, on the issue of self defense, merely has to show that it is more likely than not that the defense did not have a legitimate justification under the law.

[mstinamotorcity2]

83. just what I said.

doesn't really need clarification. but you may read whatever you like into the statement.

[ksoze]

85. If you mean the prosecutions bar should be lower

than prepare for worse results. The majority of cases are not this high profile, big defense lawyer circus. Our system is built upon the state proving you are guilty with no doubt and the normal public defender of a economically challenged or minority defendant is already handicapped by the system. This case is an anomaly and the out lawyered prosecution here is no where representative of 99.999% of cases.

If you however mean something else, than just say it.

[mstinamotorcity2]

86. it is what

it is. You may read into it what you want. the statement means what it says.

[Rex]

88. They are having a hard time with peoples opinions.

Sorry for some rude comments, some people have no manners.

[mstinamotorcity2]

90. you get it.

But won't waste my time explaining a statement that is self explanatory if you are looking from where I sit. Thanks for the props.

[Rex]

109. Yeah and also, it is always just a handful of people.

They like to pretend it is all of DU, to hide their lack of class and/or manners imo.

[mstinamotorcity2]

115. probably

followers

[ksoze]

94. I read you are very confused, so you post anything vague

Read into that what you want

[pipoman]

106. I see you are pretending

this is "self explanatory" which it couldn't be farther from...I won't bother..

[LanternWaste]

75. Unless the individual is part of the jury, what a person may or may not believe is hardly "scary"

Unless the individual is part of the jury, what a person may or may not believe is hardly "scary" to me, it doesn't even rise to the level of "concern". It's merely an opinion that, all things being equal, has zero consequence to any court cases being tried.

Unless that individual is actively attempting to change laws to call for a lower standard, it means as much as me saying "I wish I could fly...".

Should someone believe that Zimmerman is guilty of murder, guilty of manslaughter, guilty of assault, or simply guilty of illegal money-transfers from his jail doesn't really indicate their political values. On the other hand, implying as such is buy definition, dogma-- worthy of any really successful Sunday morning televangelist.

[Rex]

89. Great post.

I think most of them know it is a persons opinion, but ya know how some people have to be rude.

[pipoman]

103. So pointing out a fallacious opinion is rude? What's that make DU then?

[Rex]

107. It is only a handful of people, nice try.

nt.

[pipoman]

104. There was a time in the not too distant past that people

understood basic principals of civics and American Government...not so much any longer..based on the ignorance of many people posting ubiquitous 'opinions'..like that all the jurors were bigots, the prosecution threw the case, Zim should be prosecuted for "civil rights violations", etc..

[gollygee]

92. The state should have to prove beyond a reasonable doubt that you killed someone

but if you admit you killed someone and claim an affirmative defense, like that you were acting in self-defense, the state should only have to prove that it is more likely than not that you were not acting in self defense. It is almost to totally impossible to prove a negative, and to expect that is to make murder legal.

[Sunlei]

93. a civil case will have a much lower burden of proof.

I don't know if the family plans for a civil case or not.

People are upset and imo rightly so. We need to keep talking about these problems with our society.

Even though the case wasn't tried over any race issues, many people noticed undertones of OLD racial issues that led to a death.

[Skittles]

101. reasonable doubt should not include believing ridiculous stories

[H2O Man]

126. I haven't seen any

calls for a lower standard.

[markpkessinger]

129. Absolutely right!

There are some countries where one actually has to prove his or her innocence if charged with a crime. Proving a negative can be almost impossible sometimes.

[Yo_Mama]

134. Evidence has proved conclusively that people are wrongfully convicted of serious crimes

I don't think we want to increase that number! Decrease it, but not increase it.

And regardless of what the law said, if I were on a jury and someone were charged with a crime and I wasn't absolutely sure the person was guilty I could not convict.

The prosecution has massive resources. If the prosecution cannot clearly make the case, the accused should go free.