Possible shift in PA against self-defense
Prof. Volokh has a post on the subject. English common law treated self-defense as a true affirmative defense: the burden is on the defender to prove it, and by a preponderence of the evidence (i.e., do more than raise a reasonable doubt). American law almost unanimously treated it differently: the defender must raise some proof of self-defense, and at that point the prosecution has the burden of disproving it beyond a reasonable doubt. Now it appears that the PA Supreme Court may shift to the English rule.
This would definitely be a change for the worse. Raising an effective self-defense claim is already quite difficult. The biggest problem I see is that modern jurors have no understanding of the dynamics of fore or violence. Based on the comments that I hear from jurors following trials, it appears that many of them already place the burden of proof on the defendant (not just in the context of an affirmative defense, but in every regard). But I still don't want that to be the actual rule. Let's at least keep up the pretense of a presumption of innocence.
Posted by: Jeff at July 30, 2013 12:38 PM
Like one commenter there noted--that is dicta in a footnote from Ron Castille who is about to be retired.
I read the opinion and would note that the shooting occurred before Pa. passed its own version of not being required to retreat. I'm not sure how that would affect this case, but not retreating when you could have was an issue there.
What I got out of it was that if you are going to claim self-defense, come up shooting rather than brandishing.
This is troubling...
Posted by: D.Laden at July 30, 2013 06:12 PM