A predictable split in Ohio
Story here. A bill is up that would shift the burden of proof in self defense cases so that the state has the burden. The governor supports it, and the Ohio Prosecuting Attorneys Association opposes.
Don't know if the bill draws a distinction between two types of burdens. (1) Burden of proof: one party must, at the end of trial, have proven something to whatever standard is required. That'd mean that if self defense is raised, the State must disprove it or lose (depending on how it is arranged, this might require proof beyond a reasonable doubt, or proof by a preponderence of the evidence). There's every reason to put that burden on the State. (2) Burden of going forward. One party or the other must bring in some evidence before the issue is in play. I can see opposing putting this burden on the State, and requiring the defendant to present some evidence to make it an issue. Otherwise -- two people in a room, one kills the other, and doesn't talk about it. The prosecution will likely fail (whether it really was self-defense or not) since the State has nothing to disprove self-defense, and bears the burden of doing that.
How odd. That's pretty much the same group that opposed the same thing in Arizona last year. Of course the law here used to be that you had to admit guilt before you could claim self-defense.
Posted by: David, Chandler, AZ at May 27, 2008 01:39 PM
Are we innocent until proved guilty? -- Or guilty until proven innocent? Old principles that shouldn't go by the wayside.
Posted by: Chris at May 27, 2008 04:50 PM
"Director John Murphy of the Ohio Prosecuting Attorneys Association says the bill could allow drug dealers to claim self defense in shootings of rivals in deals that went sour."
Isn't that always the best argument they can come up with? Remember that lawful use-of-force must be just that...lawful. In Illinois, at least, the defender must not be committing a crime, must reasonably believe their life is in danger, etc. Claiming self-defense in drug deals gone sour, or the killing of rival gang members, would not pass muster. And these attornies know that full well.
Posted by: Carl in Chicago at May 27, 2008 04:50 PM
here's more on it
Posted by: Tom at May 27, 2008 06:00 PM
The problem with the Illinois law is is that Illinois firearms law is so stringent, especially regarding handguns, that it is virtually impossible to own, much less use one, without breaking the law. In other words, the Illinois law is a backdoor attempt at removing our right to self defense. This law is totally unnecessary as killing another party in the course of a committing a crime cannot be deemed self defense.
The practical side of me wonders what is so bad about drug dealers killing each other? Someone who was a danger to the community was killed while committing a crime. How is the community diminished? Maybe we could issue a citation for littering.
Posted by: Jerry in Detroit at May 28, 2008 04:20 AM
The Ohio DAs....are just confused. They DID take an oath to support the Constitution and Bill of Rights. They have merely forgotten.
Posted by: Robert at May 28, 2008 06:06 AM
Another one of the many reasons why I don't much like career prosecutors...you're always a turd to them unless and until *you* prove otherwise. And then you're just another potential turd.
Posted by: Letalis Maximus, Esq. at May 28, 2008 06:06 AM
In Colorado the prosecutor has the burden of disproving self defense WHEN AND IF it has been placed in issue by some credible evidence offered by the defendant. In other words, the burden of prime facie proof is on the defendant, but the ultimate burden of non-persuasion remains where it always was, on the prosecution.
This makes sense. Were it otherwise the prosecution would not have proved its case beyond a reasonable doubt. I would think this is the result anywhere in a criminal case where the standard of proof is BARD, and no special legislation should be required.
The worry of the Ohio prosecutors is misplaced because, I'd bet a dollar to a donut hole, this is already the law in Ohio for the reason stated above, and also because in the type of cases to which they refer the defendant would most likely be classified as an "initial aggressor" and have no right of self defense anyway.
A law that strips someone of their self defense rights when committing any type of crime would be unjust because it would be overbroad and take away the right of self defense in cases where the defendant may have been in technical violation of some non-violent offense and in no way provoking violence by others.
Posted by: Flash Gordon at May 28, 2008 09:42 AM
Amended SB184 (Castle Doctrine) Passes Ohio House with a 73-23 vote!
Included amendments to SB184 to fix some of the irrational aspects of the original Ohio CHL law. It will now go back to Senate for approval of the amendments made in the House.
Posted by: Joe at May 28, 2008 03:30 PM