Posted on 11/12/2021 1:19:38 PM PST by Az Joe
First of all, the prosecution has to prove all the elements of the charged crime are met beyond a reasonable doubt. If the prosecution can’t get there, there is no case.
The defense argument for an affirmative defense is just another way of stating defendant had a constitutional and statutory defense to the charge. The defense only has to prove one of the defenses, and only by a preponderance of the evidence.
The prosecution is screwed seven ways to Sunday.
Even if convicted on a minor charge, there will be a mistrial on that charge and the prosecution won’t bother to return that minor charge.
“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.”
WRONG! Wisconsin statute:
(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).
“Since your reply amounts to a lame attempt at insult, I will assume you concede my points.”
Since you ignored my original response I assume you realized your post was nonsense.
You are as wrong as you can be.
Have a good night and a nice weekend.
No, self-defense claim is an affirmative defense and the burden of proof of it is on the defendant. Been that way forever.
Model Penal Code
In the US, Model Penal Code §3.04 contains an elaborate formulation for use of force, including when it is justified, and limitations on the justification.[2] The Model Penal Code is not official law in the United States. Many courts and states borrow heavily from it.
Common law cases
In People v. La Voie, Supreme Court of Colorado, 395 P.2d 1001 (1964), The court wrote, “When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real actual danger.”
This is probably the source of much disagreement on this subject — including on this thread. The item I highlighted here explains why the defense effectively takes on a “burden on proof” in a case where an affirmative defense is presented, even if the law doesn’t say so explicitly. This also explains why Kyle testified in his own defense even though that is almost always not a good idea.
Unlike an ordinary murder case where the key facts may be in dispute, the defense can’t just rest on a reasonable doubt about those facts (e.g., the defendants has an alibi, the defendant wasn’t at the scene of the crime, the perpetrator fit someone else’s description, etc.), the defense has to establish a narrative about the defendant's state of mind that really can’t be left as an open question in the minds of the jury.
No, you are a liar.
Self-defense claim is an affirmative defense and the burden of proof of it is on the defendant. Been that way.....
...forever.
Model Penal Code
In the US, Model Penal Code §3.04 contains an elaborate formulation for use of force, including when it is justified, and limitations on the justification.[2] The Model Penal Code is not official law in the United States. Many courts and states borrow heavily from it.
Common law cases
In People v. La Voie, Supreme Court of Colorado, 395 P.2d 1001 (1964), The court wrote, “When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real actual danger.”
Ohio was the last state to place the burden of proof on the defendant for self defense, and I believe the law changed there either in 2020 or 2021. In Wisconsin, the burden of proof for self defense is on the prosecutor to disprove beyond a reasonable doubt any of the elements of the defense.
For all other affirmative defenses, you’re correct that the burden is on the defendant.
No, you are lying.
If Rittenhouse does not raise the affirmative defense of self-defense, the trial would already be over and he would be on his way to prison for many decades.
Smarten up.
That would be Yoko Ono … and who would ever listen to the person who broke up the Beatles? :-P
It was a very blurry photo of Kyle holding a gun in a diagonal position. The persecution is saying he was pointing it upwards, as though he was brandishing it at someone. If that were the case - and the defense attorney pointed this out- from the position of the gun, Kyle would be aiming left handed.
It’s much more likely that Kyle was carrying it pointed at the ground - as he is seen everywhere else he is photographed.
“In federal court the prosecution has the burden of disproving self-defense, once the claim has been properly raised...The federal standard is that once a defendant meets the initial burden of producing sufficient evidence for the judge to give a jury instruction on self-defense, the burden shifts to the government to disprove the defense beyond a reasonable doubt.”
https://www.cga.ct.gov/PS99/rpt%5Colr%5Chtm/99-R-0642.htm
It is important to note that “evidence” is not proof. Tawana Browley’s testimony was “evidence”, even though she it was determined that she lied.
IOW it has to be placed at issue by trial evidence. The defendant has to provide actual evidence that he has that defense. Once he establishes evidence supporting the defence, the burden shifts to the prosecution and becomes "beyond a reasonable doubt."
The prosecution does not need to disprove all affirmative defenses, only the one's supported by the defendant with admissible evidence.
No, you are a liar.
Rittenhouse not in federal court idiot.
It’s all going to come down to one thing. Is there enough fear of the violent left to prevent the jury from doing the right thing?
Same as 2020 election court cases that no judges would consider because they knew the nation would burn.
Jurors have already had their pics and video taken for doxxing purposes. I’m sure they’ve heard about probable riots if they find Kyle not guilty the major charges.
Why not look at the Wisconsin Jury Instructions?
https://wilawlibrary.gov/jury/files/criminal/0805.pdf
https://wilawlibrary.gov/jury/files/criminal/0805A.pdf
There are others here:
https://wilawlibrary.gov/jury/criminal/instruction.php?n=820
Don’t confuse the requirement of a prosecutor to prove guilt, this is the equation that in many states law books makes it not possible to charge or even sue ( in some states) someone who uses lethal or even non lethal force in self defense.
Here in MO, if the person involved in a self-defense shooting meets the requirement in the law for the lawful use of lethal force in defense of self or other, then the issue of indictment or charge by prosecutor is moot. This must be proven in a court proceeding. Once so ruled, the person is immune from prosecution or even (in MO,) a civil suit.
That’s why its called an “Affirmative Defense”.
Here’s an exerpt from MO Statute:
RSMO 563
1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person....,
5. The defendant shall have the burden of injecting the issue of justification under this section.
and 563.074:
1. ...a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.
2. The court shall award attorney’s fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant has an absolute defense.
Otherwise an lawful use of force can be prosecute and as we see in WI, a travesty and a circus.
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