I see a lot of straw men being immolated this morning.

[DemocratSinceBirth]

Where are the DUERS calling for the repeal of the Fifth Amendment ?


If there are any I suspect there aren't many.

The right against self incrimination and the right to habeas corpus are what distinguishes a free people from an unfree one.


I do think Florida's self defense laws need to be tweaked. I think most sane folks believe you have the right to meet deadly force with deadly force however I don't think most sane folks believe a self defense claim should be available to an aggressor when he begins to lose a fight he initiated. That's a recipe for mayhem.

[VWolf]

1. "That's a recipe for mayhem"

Yes it is.

The $1,000,000 question is, how do you codify it into law?

[Blackford]

2. You insure all affirmative defenses shift part of the burden of proof to the defense.

The defense must demonstrate via the preponderance of evidence that the defendant reasonably feared for their life or the life of another before using deadly force.

What you NEVER do is require the prosecution to prove a negative (as in Florida) as proving a negative cannot be done.

Admittedly, you can hardly prove via the preponderance of evidence that a defendant reasonably feared for their life or the life of another without the defendant taking the stand to testify to that, but that's the problem with an affirmative defense. The defendant has already admitted they committed the crime and is presenting a case as to why the law should not generally apply in this instance.

[VWolf]

3. Who is "you" in your response?

I'm not being snarky, I really don't know (not a legal expert).

[Blackford]

4. The courts, people, justice system, etc. n/t

[VWolf]

6. So, are we talking about passing new laws that compel

the courts and the justice system to behave accordingly?

[Blackford]

7. No, you pass new laws that shift the burden of proof as I laid out.

All laws compel the courts and justice system to behave accordingly.

[onenote]

8. So, if the jury concludes that the state's version and the defendant's version are equally plausible

you would convict the defendant.

[Blackford]

10. In that case

the defense has proved self defense via the preponderance of evidence, thus the jury must acquit.

[onenote]

14. No, in that case the defense has failed to prove its case by a preponderance of the evidence.

Preponderance of the evidence means the greater weight of the evidence. But it is possible for a trier of fact (e.g., a jury) to conclude that the weight of the evidence favors neither side -- that each side has made an equally plausible showing. It is for this very reason that the trend has been to put the burden of proof on the state not on the defendant. Because otherwise, people would be going to jail where the evidence that they had acted in self defense was neither greater than nor less than the evidence that they had not.

[Blackford]

15. The you are saying the state proved it's case beyond a reasonable doubt

so guilty.

The burden is higher on the state.

[onenote]

24. Let's try again.

I think we both agree that the burden of proving that someone killed someone (and the various elements that distinguish one degree of homicide from another) falls on the state by a "beyond a reasonable doubt" standard.

I had thought you were suggesting that the burden of proving that a defendant, shown to have committed a homicide that otherwise meets some standard of culpability, acted out of self defense and thus should be acquitted, should be placed on that defendant by a "preponderance of the evidence" standard (i.e., the defense has to convince the jury, by the greater weight of the evidence, that the defendant acted in self defense).

My point is that under your proposed preponderance standard, a defendant who fails to meet that standard would be convicted if the jury concluded that the evidence was equally plausible both for and against the use of self defense. That, in other words, a defendant who didn't prove by a preponderance of the evidence that he or she acted in self defense will go to jail even the jury thinks that the state hasn't disproved the claim of self defense by a preponderance of the evidence.

If I am mistaken, I apologize. What does occur to me however, is a middle ground. I could see an argument for keeping the burden of proof on the state, but reducing it to prepdonderance of the evidence rather than beyond a reasonable doubt. In such a situation, a tie would no longer go to the state, it would go to the defendant. But the state could prevail if it simply proved that it was more likely than not that the defendant did not act out of legitimate self defense.

[Blackford]

25. I apologize, I thought I was being clearer than I was

The self defense portion would be preponderance of evidence, e.g. whichever side demonstrates the greater weight of evidence would determine whether self defense did occur.

The state would still have to prove beyond a reasonable doubt that the death was a homicide for a murder conviction. Manslaughter would still be a possibility, so long as the preponderance of evidence does not point to self defense.

[onenote]

9. BTW, if its impossible for the state to rebut a claim of self defense

How come it happens quite often?

[Blackford]

11. Jury bias

It mostly happens with black defendants.

[uponit7771]

5. Yeap, hit a woman...get sprayed with mace....shoot the woman dead....claim self defense and....

...you go free.

WOW!!

I'm stayin the heck out of Florida for a sec

[Dash87]

12. With syg, you can't be doing anything illegal.

That includes, for example, starting a fist fight and then shooting when that person hits back.

Otherwise, a robber robbing a convenience store could claim self-defense, and stuff like that.

Trayvon's case was also arguably self-defense (for Trayvon who was being stalked), but it was a difficult example (no witnesses, did Trayvon just ambush Zimmerman or did Zimmerman chase him or even attack, etc.)

[onenote]

13. explain how one can hit someone first and still claim self defense?

Provocation disqualifies one from claiming self defense and the threshold for provocation is actual use of force or actually threatening someone with the use of force. Are you assuming the woman was hit but there is no evidence that she was hit (no mark, bruise etc?).

[stranger81]

16. Easy -- you do what Zimmerman did.

Hit first, shoot and kill your target, then lie and say he hit first in the aftermath. Who's to contradict you?

[onenote]

18. Where was the evidence that Zimmerman hit first?

[stranger81]

21. Since no one but Martin and Zimmerman witnessed the start of the altercation,

the only evidence of that would have been the direct testimony of Trayvon Martin, which Zimmerman made sure would not be available.

Just like the only evidence of Martin being the initial aggressor is Zimmerman's say-so.

That's why anyone can take advantage of this defense, even if they are the initial aggressor. Just shoot to kill, and make sure there are no witnesses to the initial confrontation. Case closed.

[stranger81]

17. And before you say there would have been marks on Martin if Z had gotten in a punch,

the defense's own expert, Dr. DiMaio, conceded that Martin's body would show no evidence of bruising even if he'd been punched by Zimmerman because of the proximity between infliction of those injuries and the time he bled out and died (leaving no time for bruises to form, and no blood to form them with).

[onenote]

19. sounds like reasonable doubt then doesn't it?

[stranger81]

22. No, it sounds like evidence undermining the defense's claim that Zimmerman could not have been

the initial aggressor because there were no bruises or other visible injuries on Martin besides the bullet wound.

[onenote]

26. except for the part about the burden of proof being on the state not the defense

As I just posted elsewhere, a sensible middle ground might be to keep the burden of proof on the state, but lower it from beyond a reasonable doubt to preponderance of the evidence.

The problem with placing the burden of proof on the defendant, even by just a preponderance, is that in a case in which both the state's evidence and the defendant's evidence are equally plausible -- the result will be that a person goes to jail even though the state has not shown that it is more likely than not that the defendant did not act in self defense.

Keeping the burden on the state, but lowering it means, at least, that ties will go to the defendant, not the state.

[stranger81]

27. Who said anything about it being a tie?

The only evidence relating to who initiated the physical confrontation was Zimmerman's own self-serving direct testimony. While this jury evidently chose to credit that testimony, another jury (especially a more diverse jury, more reflective of the general community and less predisposed to see the victim as the aggressor simply because of his skin color, age and gender profile) could easily have chosen to discredit it entirely (particularly given Zimmerman's evident willingness to lie under oath -- see his bail hearing).

[onenote]

30. Yes they could have. But did the prosecution even suggest that is what happened? Serious question

I honestly don't recall one way or the other whether the prosecution argued in any way that Zimmerman had physically attacked Trayvon.

Assuming they did, but the only evidence they presented was that the lack of any mark on Trayvon doesn't mean he wasn't attacked doesn't seem likely to overcome the state's burden of disproving self defense beyond a reasonable doubt. And not just for this jury, but for any jury.

[stranger81]

31. Wasn't that the whole point of putting Rachel Jeantel on the stand?

She was the only one left who could testify that she heard someone approach Martin and ask what he was doing there, heard Martin ask why the person who approached was following him, then heard Martin say "get off, get off" before hearing the phone call disconnect.

[stranger81]

29. Assume, hypothetically for the moment, that it is in fact true that Zimmerman started the physical

confrontation. What is to stop any Zimmerman, or any defendant, from simply lying about that fact and being guaranteed a get-out-of-jail free card if the burdens of proof are as you say? Assume all other facts, including DiMaio's testimony (and even Root's preposterous testimony about Zimmerman being utterly unable to harm a challenger in a fight), remain unchanged.

If the answer is nothing, doesn't that strike you as a problem?

[Pelican]

20. How convenient...

[uponit7771]

33. ...NOT ... NOT if the person calls no joy and assumes "innocense" in Florida.

[Igel]

23. So is the alternative.

It's no less silly.

So I don't know you. We meet, exchange words, and I throw a punch.

You respond with reasonably proportionate force. Now, you could leave, so you have no valid self-defense claim. But let's say you don't leave. We fight. That's okay. I assaulted you and there was a fist fight. Perhaps public disorder for both of us. Nobody dies. Bloody noses all around, perhaps. Perhaps one side wins.

If I escalate the force level to where you're reasonably in fear of your life and I've blocked your exit and you kill me you have a valid self-defense claim. Assuming that this can't be disproven. Okay. So far this is Florida. Or most states.

But what happens if instead you block my exit and escalate the level of force to where I'm reasonably in fear of my life but I don't return the same level of force? Now, you'd clearly be subject to sanctions. No self-defense claim, and it's going to manslaughter or 2nd murder. Still, you'd claim you're the victim and I'm the aggressor. The terms are a bit funny.

Under that last scenario, though, I have no valid self-defense claim. I threw the first punch--I am forever the aggressor. If I'm blocked and in fear for my life, even though at no point until then did I use lethal force or make you fear for your life, I'm still the aggressor. If I stop you by using lethal force, I'm the aggressor and have no self-defense claim.

Notice the asymmetry. You're punishing the person who started it and saying that under some circumstances his only choice is death or a murder charge. It doesn't matter who escalated the violence, who's in charge of the fight, who can escape. That first blow dictates guilt.

Nope. I've seen this scenario. My best friend snapped and if the floor he was pounding his brother's head against hadn't been carpeted hardwood over wood joists but instead vinyl on concrete or even a cast iron grate, he'd have killed his brother. The brother threw the first punch. It was the only punch he threw. A few minutes later his mother managed to stop it, but the kid was curled up, sobbing, clutching his head and moaning, "He was going to kill me."

Had my friend killed his brother, it would have been manslaughter or 2nd degree murder. He had an escape. He was in no reasonable fear of his life. He had escalated the violence to lethal force disproportionately. He had no escuse.

Had his reached out, grabbed a knife, and killed my best friend I'd have mourned my friend but said that his brother (a smart-ass pothead punk) was perfectly justified. It wasn't a fair fight--and the aggressor was clearly the victim after the first, oh, 3 seconds. The punk had no escape route, hadn't escalated the force, and was in more than reasonable fear for his life. He may have been an idiot--most 15-year-old boys are--but he didn't deserve the choice of being killed or facing murder charges for his one limp-wristed punch.

A bad case make bad law. Trying to punish a person by rewriting the law because an indecisive case isn't decided the way somebody prejudged it makes even worse law.

[DemocratSinceBirth]

32. I see your point. X can't kill Y because he X hit him first, however...

You can't kill a guy because he got in one good lick. What happens in the instance where despite the aggressor getting in one good lick, the person who is attacked, responds with a good lick of his own and it escalates from there ? Both combatants get in several good licks. At that point the aggressor is in fear of his life and shoots the person he starts the fight with? My scenario presupposes the person being aggressed against can't retreat.

[DeschutesRiver]

28. Other states do not protect an aggressor as FL does. And my state requires more than 6 people

To deliberate on this kind of case - takes 12.

So increase your numbers and drop the aggressor protection part of of your stand your ground law. That is a world of a difference fom what you have now and hardly unprecedented. It takes nothing away from a FL citizen nor requires retreat unless you were the aggressor.

I cant understand why your legislature does not want to do this, as it would only impact aggressors. But at this juncture, it is what the people of FL want. I get the SYG, my state has that as well. But allowing an aggressor to take advantage of it and in such a blanket fashion too? Not good.

For anyone who hasnt seen it, here is link. The part that protects wrong doer is 776.041(2). All it does is give leg up to a person who already has the upper hand having started the aggression.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.041.html