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Burden of proof: Drawing lines over self-defense


There are plenty of things that make the “Stand Your Ground” bill going through the Ohio House of Representatives controversial — one of them is how it addresses who should be responsible for proving self-defense when it is claimed in a court case.

The bill seeks to shift the burden of proving if self-defense was justified or not from the defendant to the state.

But before we can dig into that, we have to clarify a few things.

No matter what, in any criminal case the prosecution has to prove beyond a reasonable doubt that the defendant committed a crime in order to send them to prison.

State Public Defender Tim Young and Executive Director of the Ohio Prosecuting Attorneys Association Louis Tobin both agree on that fact.

In Ohio, a person can claim self-defense when they are charged with a crime. This is referred to as an affirmative defense.

Unlike the rest of the country, in Ohio, the defendant is responsible for convincing the jury that it is more likely than not they were acting in self-defense in order to be acquitted of a crime.

It should be noted the two proofs — beyond a reasonable doubt and more likely than not — are very different in how much needs to be proven in order to be successful.

The evidentiary level of beyond a reasonable doubt is much higher than someone just trying to prove something is more than likely.

Here is a vastly over-simplified example: you have nothing stuck in your teeth when you arrive to work and they are not stained, therefore it is more likely than not you brushed your teeth in the morning. To prove beyond a reasonable doubt that you brushed your teeth, one would need to show a lot more evidence, like your still damp toothbrush, a witness (preferably a dental professional) to testify that your teeth are clean and breath is fresh and perhaps a receipt showing you purchased the toothpaste found in your bathroom medicine cabinet.

When it comes to self-defense though, some of those kinds of evidentiary things may not be available, like witnesses.

That is one of the problems the prosecution has with the burden being shifted to them. They say in cases where just two people were there and one ends up dead, they can’t question the victim and it would be much harder for them to prove the killing was not done in self-defense.

On the flip side, it is easy to prove that the victim died because they are a corpse. As such, forensic science can tell investigators a lot about what happened.

That is part of the reason why Young says prosecutors should have no problem proving the defendant did not act in self-defense if that is what happened.

But then we get back to that tricky issue of which level to prove to.

Obviously, prosecutors would still have to prove beyond a reasonable doubt that the person was killed, but what about the defendant’s excuse for killing the person?

Should prosecutors have to prove beyond a reasonable doubt that the defendant did not act in self-defense? Or should they only have to prove it was more than likely they did not act in self-defense, the same level of proof the defendant currently must reach?

All of that aside, there is another issue.

We all know that jurors are supposed to respect that all defendants are innocent until proven guilty. 

With that said, and in most cases, a prosecutor will not charge someone with a crime unless they are convinced the accused committed the crime and they can prove it beyond a reasonable doubt. 

That’s because every case costs time and resources from both a fiduciary and human capital standpoint, and they have to spend their resources wisely.

This is called prosecutorial discretion, and according to Tobin, the Stand Your Ground bill erodes it.

Tobin says that prosecutors have no interest in charging everyday Americans with crimes if they clearly were just defending themselves and their families, and that they have the propensity to differentiate between someone who uses self-defense and someone who did not based on the evidence law enforcement has gathered.

Supporters of shifting the burden of proof use that line of thinking to point out that if the prosecutor is so sure they have the right guy for the right crime then they should have no trouble proving it and why it wasn’t self-defense in court.

In talking to both Young and Tobin, it was clear, the inclusion of this shift of burden of proof in the Stand Your Ground bill isn’t doing the effort to make the change any favors.

According to both men, there are several things in the bill they do not support beyond the issue of burden of proof.

Young says his organization is supporting the bill anyway because he trusts that lawmakers will do the right thing and fix the bad parts of the bill and keep the good parts moving forward.

He also says that in an ideal world, this issue would be separate from the controversial bill.

The bill remains in the House Federalism and Interstate Relations Committee.

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