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Let's begin with the Zimmerman and Martin case and stick with the concept of self defense and not worry about Stand Your Ground. Common sense tells me that in most parts of the civilized world, thde state has to prove beyond a reasonable doubt that Zimmerman actually committed the ACT of shooting Martin.

Now past that point is where I am confused and we know the law varies from region to region. Common sense would dictate that it should not be the state's responsibility and exclusive overwhelming burden to guess or figure out what is going on in the murderer's head.

My sense of fairness would hope for more of that  burden of justifying that self defense should shift to the defendant. Now I wouldnt go far as to say that the defendant has to prove beyond a reasonable doubt that he had to resort to self defense. I am not that extreme in my opinion.  But some burden of proof has to shift to him at this stage of the trial. Let's go hypothetical to see what i mean. Let's assume Martin killed Zimmerman. Let's say  Zimmerman took it one step further and just started waving a gun at Martin and started chasing him with that gun in front of witnesses, I wouldn't blame Martin if he shot back.That is obvious self defense for me. I wouldn't as a juror have to hear too much testimony to figure out what was going on in Martin's head to give him the benefit of doubt.  Short of that,example's severity of provocatin,  I would put the burden of proof on Martin. Let's say martin was spotted pounding Zimmerman to death and even if it appeared from the 911 call that Zimmerman was itching for a confrontation, I would still make Trayvon work really hard to prove that he had no choice and short of that he would go to jail with the severity of the sentencing being the discretionary tool used to judge the uncertainty in figuring out MArtin's state of mind.

But when you see the instructions interpreted by juror B29as they have to prove BEYOND A REASONABLE DOUBT that Zimmerman did not have self defense in his mind , something is fucked up. So the state has a high burden not only to prove the act itself but to read Zimmerman's mind?

"I was the juror that was going to give them the hung jury. I fought to the end," she said. "That's where I felt confused, where if a person kills someone, then you get charged for it. But as the law was read to me, if you have no proof that he killed him intentionally, you can't say he's guilty."

She continued, "as much as we were trying to find this man guilty…they give you a booklet that basically tells you the truth, and the truth is that there was nothing that we could do about it. I feel the verdict was already told."

It appears not that it was not enough for her to feel that what Zimmerman said wasn't fully credible with her(as B37 claimed Zimmerman was). She felt like she had to know BEYOND A REASONABLE DOUBT that zimmerman did not really have a reasonable fear of dying.

OK this is not a perfect analogy. But I will mention it anyway. What if a state has a law whre the burden of proof that a defendant is  NOT insane rests on the state instead of putting the burden on the defendant's legal team to show he is insane.

So legal experts weigh in. WHAT THE HELL IS THE BURDEN OF PROOF IN FLORIDA? And WHAT THE HELL IS THE BuRDEN OF PROOF IN OTHER STATES? Now I am not saying the defendant should have to prove beyond a reasonable doubt that he acted in self defense. But I would hope that in most states the majority of burden should fall on him to justify self defense  once the state has proved beyond a doubt that he committed the act.

Once again, I am in no way saying that Zimmerman had to prove beyond a reasonable doubt that he acted in self defense. But the way B29 explains it, she felt like the state had to do all the work not just for proving the act of the shooting was done by Zimmerman but also what was in Zimmerman's mind. I think it should just boil down to credibility. In which case juror B37 would still find Zimmerman is innocent(which I disagree with, but I can live with such an interpretation of the law) but B29 would find Zimmerman guilty because she obviously thinks Zimmerman got away with it and she is implying he was not credible.

My only request. Please preface your comment title with [LAWYER] or [LEGAL EXPERT] so we know which one is professional opinion and which one is not.

Oh, and Angela Corey must resign. She did bad things to both the left and the right in this one case. Amazing.
Oh and i was right about the person not part of the gang of four's statement being hispanic.

P.S.: In the" Dooley (crazy black guy) shooting an unarmed innocent white guy(iraq veteran) in front of his daughter" case, the jurors obviously had more common sense in rendering a sensible verdict. By the way, in that case, the white guy did have his hands on Dooley and the white guy was the stronger guy. The juror correctly saw past that.

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Comment Preferences

  •  It varies... (1+ / 0-)
    Recommended by:
    wu ming

    from state to state, as you noted.

    In some jurisdictions, the burden is on defendant, but in most, including FLA, the prosecution has the burden, if the defendant is claiming self defense. In other words, the prosecution must indeed prove beyond a reasonable doubt that the killer did NOT act in self defense. In FLA, that is because of the "Use of Force" laws specifically authorizing someone to use deadly force when they feel threatened.

    It is insane that any jurisdiction in the U.S. should have such laws. They fundamentally change how self defense has operated for centuries, and their consequence is to deprive people like Trayvon Martin of their human rights.

    --A law student.

  •  No expertise (2+ / 0-)
    Recommended by:
    johnny wurster, Neuroptimalian

    Several people here have told us that the burden of proof is on the prosecution everywhere in this country except in Ohio. I don't know if this is true or not.

    I asked this question before but didn't get any discussion:

    Suppose we have a case of actual self-defense - a person killed another person because that person was truly threatening his life, and he had no means of retreating. Suppose there were no witnesses and no circumstantial evidence to tell us which one was the aggressor. We have nothing but the story of the person who is still alive. He can't prove he's telling the truth, but he is.

    If the burden of proof is put on him, he will have to be convicted. Is that really what you want?

    Only one person answered me last time. He said yes because he could have shot to wound but not to kill. I didn't find that very satisfying. If someone is about to shoot you I think shooting to wound is pretty dangerous to yourself.

    We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

    by denise b on Thu Jul 25, 2013 at 11:07:29 PM PDT

    •  Well (0+ / 0-)

      in your hypothetical, I'm not sure why there would be no circumstantial evidence--if the victim (the dead person) had a gun, too, we would know, just as we know exactly what Trayvon Martin was carrying when he was killed.

      In any case, if your larger point is that it's not unfair to put the burden on the prosecution, I agree--that's not the problem here (in my opinion).

      This blog post addresses the burden of proof issue, if you're interested:

      A law professor's take.. Florida's laws, as written, are the problem.

      •  They both had guns and fired them (0+ / 0-)

        The dead guy pulled his out first and fired but missed. There's no evidence of who fired first. This seems pretty plausible to me.

        Thanks for the link - the article was interesting. But my interest in this question wasn't in the Zimmerman case but in the general issue of burden of proof.

        The diarist thinks it should be modified in self-defense cases. He doesn't want to shift it entirely on the defendant, but I've heard lots of other people here say they did. I'm interested in understanding what changes to the law might look like and how they would be applied in real cases.

        We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

        by denise b on Thu Jul 25, 2013 at 11:44:12 PM PDT

        [ Parent ]

        •  Yes (1+ / 0-)
          Recommended by:
          denise b

          it would be very difficult for the defendant to "prove" he acted in self defense in such a case.

          I think that is why the overwhelming majority of states do NOT make the defendant prove self defense. I just now read a case about this issue in Virginia (because I was curious), in which the court explained that putting the burden on the defendant would cause "unreasonable hardship." The court also said that making the defendant prove his innocence was unfair; in effect, putting the burden on the defendant "took from the accused his right to acquittal if the jury entertained a reasonable doubt whether or not he acted in self defense."

          •  And let's not forget that the Fifth Amendment ... (2+ / 0-)
            Recommended by:
            erush1345, denise b

            REQUIRES that a defendant not be forced to prove his innocence, making it the charging authority's responsibility to prove his guilt.  

            "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

            by Neuroptimalian on Fri Jul 26, 2013 at 07:56:55 AM PDT

            [ Parent ]

        •  I think the best thing is to shift the burden (1+ / 0-)
          Recommended by:

          to the defendant, but only require him to prove it by a preponderance.  That takes the burden off the government, but doesn't require the defendant to prove anything beyond a reasonable doubt.  

          •  So if a woman, who has a concealed weapons (0+ / 0-)

            license, is attacked one night by a rapist. The rapist has never raped before, or just hasn't been caught, and has no record. The rapist knocked her down, holds her there, tells her how good he is about to give it to her and also tells her he is going to slit her throat when he is done.  As he maneuvers around to pull his pants down, still holding her by one hand....but since he loses concentration for a split second...she is able to reach for her gun and shoots him dead.

              What "proof" would this woman have to keep her out of prison for the rest of her life....for defending her life??

            NO record for the rapist...and he hadn't got around to raping her yet so no DNA...He hadn't beat her YET, so no broken jaws or broken noses....He did not get around to slitting her throat, so she is still breathing....she didn't know she was going to be attacked, so she didn't call 911 one saw shit because the rapist was at least smart enough to attack while she was jogging at night....the only "proof" this woman has is a dead body with pants half way pulled down and perhaps she could "prove" that she had never meant him before.  That's it, that's her "proof".

            Perhaps she should be required to relive the attempted rape on the stand, while she is charged for murder. Perhaps she should be required to have her entire body swabbed to find "proof" of his DNA if any is present in any way, and heaven help her if they don't find any.  Perhaps it could be said that she was just a hooker and got mad that he didn't pay first....can she "prove" otherwise?  

            This is why we have these laws. People have a right to defend themselves against attack and being killed.  Women are the victims of the most deadly attacks, and they too carry to protect themselves from attack.  Women or men for that matter, should not have to "prove" their innocence to protect themselves.  People shouldn't have to lay under a would be killer, and hope and pray they now have enough "proof" for their coming trial....because if they choose to live instead of allowing someone to kill them....they are guaranteed to be arrested and tried for that choice.

      •  I'm thinking about the statement (0+ / 0-)

        at PrawfsBlawg that under Florida law the person who acted in self-defense is immune from prosecution unless there is probable cause to think the killing was not self-defense.

        That might explain why he was not initially charged. But then what was their probable cause when they did finally arrest him? Would this be documented somewhere?

        We decided to move the center farther to the right by starting the whole debate from a far-right position to begin with. - Former House Majority Leader Tom DeLay

        by denise b on Fri Jul 26, 2013 at 12:21:16 AM PDT

        [ Parent ]

    •  Non-lawyer, former target shooter (2+ / 0-)
      Recommended by:
      Neon Mama, misslegalbeagle

      "Shoot to wound" -- Aaugh!!

      Gunshot wounds are more unpredictable than most people can realize. Huge blood vessels run through areas that the good guys shoot at in old Westerns. Hit one and the victim might die before getting to the hospital.

      Not to mention that surgical accuracy with a handgun under stress is a fantasy to begin with.

      If you don't want someone dead, then either call an ambulance right away or don't shoot them in the first place.

      Freedom isn't free. Patriots pay taxes.

      by Dogs are fuzzy on Thu Jul 25, 2013 at 11:37:35 PM PDT

      [ Parent ]

  •  Law of the Jungle (1+ / 0-)
    Recommended by:

    Shoot them before they shoot you. Unfortunately its what you end up with.

  •  IANAL. In criminal cases, (3+ / 0-)
    Recommended by:
    denise b, MGross, erush1345

    burden of proof must never be on the defendant. That's because there is severe power imbalance between the state (the accuser) band the individual (the accused).

    In self-defense situations, I think the operative norm is whether the claim of self-defense is believable (which is, of course, subjective on the part of the juror). The expectation on the state should be to make a case beyond reasonable doubt that the defendant's claim of self-defense is not believable.

    Suppose that the injuries that GZ sustained did not exist. In that case, it would have been hard to believe that GZ was in a situation where he feared for his life or severe bodily injury. He would have been convicted of manslaughter in that case easily.

    I also think that in SD cases, the results of a lie detector test should be entered into evidence (since this as close to as we can get to telling the defendant's "state of mind"), albeit with caveats about the reliability of those tests stated explicitly in jury instructions. In GZ/TM, GZ did pass voice stress tests performed on him on the night of the incident:

    On June 26, 2012, the prosecution released the results of a voice stress test performed on George Zimmerman the day after the shooting. A voice stress test is a type of test used to measure deceptive or psychological stress in the human voice in response to questions. Zimmerman was asked, "Did you confront the guy you shot?", to which Zimmerman answered, "No." Zimmerman was asked, "Were you in fear for your life, when you shot the guy?", to which Zimmerman answered, "Yes." The examiner concluded that Zimmerman "told substantially the complete truth" in the examination, and Zimmerman was classified as "No Deception Indicated (NDI)" according to the report.
  •  [non-lawyer]State of mind can be assessed (0+ / 0-)

    Previous knowledge and training are part of it. What's the state of mind of someone facing a menacing person who's standing 21 feet away with a combat knife? They're objectively a second and a half away from death, but their state of mind depends on whether they've ever been through a Tueller Drill (look it up).

    State of mind can be deduced from whether the person was pursuing, fleeing, or hiding.

    Mind reading is not necessarily required.

    Freedom isn't free. Patriots pay taxes.

    by Dogs are fuzzy on Thu Jul 25, 2013 at 11:47:20 PM PDT

  •  [non-lawyer]It's both state of mind and reality (0+ / 0-)

    Both have to be present.

    The following examples are deliberately absurd and cartoony so they don't get mixed up with anything in real life.

    Person A has a disabling phobia about green hats. He believes that they are sentient and are able and eager to kill him. This is substantiated by his papers from the mental hospital.

    His state of mind when he attacks someone on the street who's wearing a green hat is beyond serious dispute but he shouldn't get very far with a self defense claim.

    On the other hand, suppose Jack the Ripper got arrested and his victim turned out to be have been carrying a poisoned needle, of the sort issued to North Korean assassins, and she had orders to kill him for ridiculing the Great Leader. But since he didn't know that, he doesn't get a self-defense claim, and goes to prison for murder and Aggravated Anachronism.

    Freedom isn't free. Patriots pay taxes.

    by Dogs are fuzzy on Fri Jul 26, 2013 at 12:11:52 AM PDT

  •  Sense of fairness? (0+ / 0-)

    If you are going to have a sense of fairness over the issue of self defense in a nation where one is supposedly innocent until proven guilty, then you should edit your diary to change the word "murderer" in:

    guess or figure out what is going on in the murderer's head
    Because until the law has determined what has happened, especially in a case where self-defense is claimed, that person is not a "murderer" (i.e. unlawful killing, especially with malice aforethought). You know, "sense of fairness" and all that.
  •  re: Angela Corey (1+ / 0-)
    Recommended by:
    “Rarely are shooting cases like this cut and dry,” Corey said.
    We punish people for their actions, not for the fact that (Alexander) happened to miss 3 human beings, and thank God she didn’t kill them.”
    Which, of course, explains how-come Zimmerman was punished for his action of shooting which  did not happen to miss a human being, which he fully admitted.
    Not getting 20 years for a shot that didn't miss. Even though he 'slaughtered' a man 'unintentionally'.

    Oh yeah, I forgot. Same judge, different universe.

    We are all pupils in the eyes of God.

    by nuclear winter solstice on Fri Jul 26, 2013 at 05:23:50 AM PDT

  •  Non lawyer, Florida gun owner. (0+ / 0-)

    Either Z was "brandishing" his pistol, which is a felony offense in Florida, or he drew it with the intent to shoot.

    I refuse to get a concealed carry permit because one of the rules, in the application booklet,  you must learn to get it is that you have an extra burden to keep it concealed.

    The jury might have been less squishy on his "mental state" or "intent to shoot" if they had been instructed on this detail.

    Alternatively, if Z was "brandishing", then he no longer had the required protection of being in a legal place and behaving legally --- which is part of what is required to allow self defense.

    De fund + de bunk = de EXIT--->>>>>

    by Neon Mama on Fri Jul 26, 2013 at 06:33:16 AM PDT

  •  No mind reading required. (2+ / 0-)
    Recommended by:
    pravin, erush1345

    It's a "reasonable belief" statute, only what a reasonable person would believe in that situation (based on the facts) is relevant, not his actual state of mind.

  •  Its called 'Innocent until proven guilty' (2+ / 0-)
    Recommended by:
    Neuroptimalian, erush1345

    That's why the burden of proof lies with the prosecution.

    Are you advocating 'guilty until proven innocent?' and you think the justice system is fucked up now?

    •  No, my beyond a reasonable doubt only extends (0+ / 0-)

      to the act of killing itself.

      •  My point stands. (0+ / 0-)

        The defendant is always given the benefit of the doubt and the burden of proof lies with the prosecution. By extending the need for Reasonable Doubt to be shown in the case of self-defense you ARE establishing Guilt until proven otherwise. Our legal system does not work that way thank God or we would have ten times as many people in jail than we do, and most of them innocent.

        But hey, let's just turn the country into a prison state like you want.

        •  how so? (0+ / 0-)

          Under my system beyond a reasonable doubt does extend to the act. So only those who have shot someone else will be determined to have killed the other person in a court of law. But like I said, I would not beyond a reasonable doubt for EITHER PARTY - the state or the defendant to prove or disprove the act was self defense. It really boils down to credibility. The way the hispanic juror explains it, she thought Zimmerman got away with it because she felt the state of FL forces her to interpret whether the state not only had to prove the act was committed beyond a reasonable doubt but the intention of the shooter was anything but self defense. So by default, they are granting the defendant the major advantage. Imagine if they extend this to by reason of insanity as a defense in court.

        •  Unless you are saying (0+ / 0-)

          A lot of peope who shoot someone will be doing so in self defense , so someone who shoots someone in self defense will be wrongly convicted in such large numbers. Seriously, self defense is not a high percentage of killings. and of that, not that many have such a confusing scenario where there are no witnesses or history between the players in the act. So I do not know where the hell do you get that shifting "SOME OF THE BURDEN" of proving self defense to the defendant will result in a much larger number of convictions and we become a prison state.

  •  There are two moving parts here. One, (2+ / 0-)
    Recommended by:
    pravin, erush1345

    what is the burden of proof; and two: who carries it.  

    In Florida (and in most other states), the prosecution carries the burden.  That means that the prosecutor has to show that Zimmerman did not act in self-defense if the defendant can make ANY showing whatsoever that the killing was in self-defense.  (Basically, the government doesn't always have to prove not self-defense—the defendant has to at least bring some evidence that it was in self-defense to put the burden on the government).  

    Then there's the issue of WHAT the burden is.  In Florida, it is "beyond a reasonable doubt."  Other states use different metrics—in New York, for example, the government might only have to prove not self-defense by a preponderance of the evidence.  

  •  Never heard of the idea... (1+ / 0-)
    Recommended by:

    Of the prosecution having to prove it was not self defense.

    As a Californian the notion is just alien to me.

    The prosecution proves you commited the act, with intent to kill (malice aforethought), inten to cause serious bodily injury reasonably likely to result in death (second degree), or with a reckless disregard for human life (manslaughter).
    - Something close to that, though my terms might be off.

    Self Defense is an Affirmative Defense. You have to get up there and claim it, and then argue it, and prove it, to get it. As a result, if I recall right that means you've just shed your right not to testify.

    If Florida presumes self defense, its no wonder the place is open season on people of color... since we live in a country where much of the conservative white population, and more of the non-conservative than there should be; strangely believes the colored folks are out to get them and hiding behind every hoodie...

    - This itself is no real surprise, since it was a major cause of the Revolution. Read your history; that speach by Patrick Henry, he never said "give me liberty or give me death" (that was written a few decades after his death), but he was known for inciting mobs against 'negros and savages', and claiming the Brits were going to free the Blacks and make peace with the natives (and the Brits actually did make a final permanent treaty ceding their right to ever expand further right before the revolution).

    - Race War and a fear that the other races would get them, has been a founding principle of the nation's history...

    Take away any burden to prove you've acted in defense, as there is a nasty instinct in this country to revert to old ways of thinking were the 'fear' comes back up and it just seems to "make sense" to many that of course "the slave or indian was trying to revolt again"...

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