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View Diary: Michael Dunn's Defense Did Invoke "Stand Your Ground" (161 comments)

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  •  So, your standard is (4+ / 0-)
    Recommended by:
    FrankRose, DavidMS, Kasoru, ER Doc

    That a person should have to prove themselves innocent to avoid automatically being found guilty?

    Also note that in Ohio you are presumed to have acted in self-defense if you kill someone who is in your home without permission (2901.05.B.1).

    •  "Presumed to have acted in self-defense" (1+ / 0-)
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      does not alleviate "the burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense" that rests  "upon the accused."  It is simply an enumeration of the justifications that can be by the accused and proved to the satisfaction of the statutory standard.

      •  Exactly what I said (4+ / 0-)
        Recommended by:
        DavidMS, FrankRose, Kasoru, ER Doc

        As long as we are quoting the law, it says the presumption of self defense is:

        (3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.
        Sounds to me like the language of the law is that self-defense is presumed and that any prosecution is the one that must provide a "preponderance of evidence" to the contrary.

        People can follow your link and decide for themselves. Reading through Ohio case law, you get phrases like "state failed to meet its burden of proving the defendant did not act in self defense" and "trial court erred in instructing the jury that he bore the burden of proving that his actions were lawful", so there is precedent that in the absence of prosecution evidence to the contrary, self-defense is the presumption.

        •  Except (A) explicitly states (0+ / 0-)

          that the burden of going forward lies on the accused, and that the accused must do so by preponderance of evidence to prevail.  If that burden is met, it is rebuttable.  Burden of going forward is typically established at pretrial.

    •  But to answer your question (1+ / 0-)
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      No, there's no need to shift the burden of proving guilt.  Self-defense already admits the elements of the homicide.  I propose simply doing as Ohio does, which is to place justifiable use of force squarely in the constellation of affirmative defenses (i.e., insanity).

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