Posted on 11/12/2021 1:19:38 PM PST by Az Joe
To successfully claim self-defense, the defendant must prove four elements.
First, with exceptions, the defendant must prove that he or she was confronted with an unprovoked attack.
Second, the defendant must prove that the threat of injury or death was imminent.
Third, the defendant must prove that the degree of force used in self-defense was objectively reasonable under the circumstances.
Fourth, the defendant must prove that he or she had an objectively reasonable fear that he or she was going to be injured or killed unless he or she used self-defense.
You are correct. The defendant merely has to raise the defense and the prosecutor has the burden of disproving it beyond a reasonable doubt.
A consultant on FNC said the prosecution has to prove the absence of self defense beyond a reasonable doubt in Wisconsin. That’s the law in Washington state.
The State must prove guilt. A person does not have to prove their innocence.
Kyle's defense was only there physically today so now the jury gets a blurry image taken from a frame of the FBI video and also get the video. They also get instructions on the provocation aspect. State is saying Kyle aimed his gun at someone else, not Rosenbaum but that it provoked Rosenbaum. They claim Rosenbaum was trying to save the day by getting the guy who has aimed a gun at someone.
Does getting the edge of a heavy skateboard to the back of the head count? Blunt force trauma, one of the most common ways people are murdered.
Call one of the several witnesses to the incident to the stand.
Actually all you have to do is claim self-defense. It’s the prosecutor that has to prove that you didn’t use self-defense.
By the way, The Rittenhouse case also clearly gets over all four of those hurdles with aplumb.
“It is an affirmative defense. Hence, asserting the defense must be proven by the person making the assertion.”
You misunderstand what an affirmative defense is.
(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).
“I’m not sure an online correspondence course in criminal justice is the best source for legal analysis related to this case. It’s a general summary of what self defense is, those aren’t listing of statutes. So, from that standpoint, it’s nonsense in this context.”
The we agree that your post is nonsense>
It's a bit of a logical nonsense, but what you describe is true in at least Washington state. The usual rule is defendant has to assert it, produce evidence of it, and burden of persuasion to a standard of more likely than not.
Prosecutor doesn't have any burden of production in self defense, and will naturally take on the role of persuading the jury that self defense does not lie.
Just saying, the burden of persuasion looks about the same, no matter which side you frame the reference in.
Ohio's self defense law sucks. Standard of proof for self defense is really high - not beyond a reasonable doubt, but higher than preponderance.
The system expects that prosecutors won;t bring a case when the self defense is pretty clear. That said, the rules for prosecutors all them to ignore self defense entirely, and charge even cases where the self defense is clear - no ethical breach.
That should be an easy to rebut accusation. He was generally holding the rifle and it had to be pointed somewhere, thanks to the laws of physics (are quantum AR-15s available?).
Just because it was pointing in someone’s general direction when he turned to see what was going on does not mean he intended to point it at anyone in particular.
“I think it should be up to the state to overcome any reasonable doubt that that is the case.”
It is.
The standard of proof for an affirmative defense is “preponderance of the evidence” not clear and convincing and not beyond a reasonable doubt. He merely has to show that it is more likely than not that this was self-defense.
OH YEAH?
Mississippi’s Stand Your Ground Law: (read ‘em and weep)
(1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;
(c) As used in subsections (1)(e) and (3) of this section, “dwelling” means a building or conveyance of any kind that has a roof over it, whether the building or conveyance is temporary or permanent, mobile or immobile, including a tent, that is designed to be occupied by people lodging therein at night, including any attached porch.
(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered,a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle,business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties.
(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
(5)(a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.
(b) 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 acted in accordance with subsection (1)(e) or (f) of this section. A defendant who has previously been adjudicated “not guilty” of any crime by reason of subsection (1)(e) or (f) of this section shall be immune from any civil action for damages arising from the same conduct.
“Does getting the edge of a heavy skateboard to the back of the head count? Blunt force trauma, one of the most common ways people are murdered.”
The related topic is the shooting of Rosenbaum.
The standard of proof is not uniform among the 50 states.
I learned yesterday that Washingston state puts burden of proof for affirmative defense on prosecutor - and I see in posts here that colorado does too. I learned during Zimmarman trial that Ohio’s standard of proof is “odd,” it has the worst self defense law in the country.
Since your reply amounts to a lame attempt at insult, I will assume you concede my points.
This is what I found back at the beginning of this case regarding jury instructions. From what went on today, I guess they can be modified by the judge.
https://wilawlibrary.gov/jury/files/criminal/0805.pdf
On the other hand the three guys in Georgia are probably going down.
It would appear that the defendant person is required to predict the future in 2 of those 4 requirements-— “Prophesy! Who is it that is going to strike you in the next 30 + seconds?!!”
Prophesy no legal standing whatsoever in a court of law.
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