Separate names with a comma.
Discussion in 'Carry Issues' started by RussP, Oct 4, 2015.
"Defense attorney says proposed legislation would be a “game changer.”"
Uh oh....be prepared for more news headlines
Um..isn't that the way things are supposed to go? One is presumed innocent, until one is proven guilty. Why would anyone think differently?
My take away in this story is, as i was taught in my CCL class, if you use your gun to defend yourself, call 911 as soon as possible following the incident. Make the statement that you are the one defending yourself from an agressor. Put yourself in the best possible position
And I'm the JBT that is supposed to be taking away peoples' rights.
Seriously, if I can't prove my case, then I shouldn't arrest someone. Thought it worked that way everywhere.
Consider yourself on probation! Don't let this happen again!
In NY State when I was a LEO there that was referred to as an "Defense." In other words, before the prosecutor could come after you for the underlying action they had to demonstrate you did not have such a defense for your actions.
Penal Law Article 35 was titled (if memory serves) as the Defense of Justification.
I know, I'm not being particularly lucid, but I ain't a lawyer and am repeating what I recall from memory.
OK, I looked it up. I only messed it up a little bit. See below:
S 25.00 Defenses; burden of proof.
1. When a "defense, " other than an "affirmative defense, " defined by
statute is raised at a trial, the people have the burden of disproving
such defense beyond a reasonable doubt.
2. When a defense declared by statute to be an "affirmative defense"
is raised at a trial, the defendant has the burden of establishing such
defense by a preponderance of the evidence.
Generally that makes sense, unless the aggressor has no weapon at all and is being chased down by the 'victim'. In that case we need a jury to hear both sides. Last thing we need are more wannebe cops (or cops for that matter) with an easy way out.
Not traditionally. Traditionally, going way back to what made common law, self-defense has been an affirmative defense. You admit to the act, claim a justification for it and now have to show that the justification was valid. Entrapment is another affirmative defense. How about we let people claim entrapment, and then require the state to prove it wasn't?
This isn't just a return to how things ought to be, its a fundamental shift in centuries' of standards.
Burdon of proof placed upon the prosecution?
We already have that in Kentucky, since 2006. I think we copied it from a prior Florida bill. Hasn't been a big deal here. Never even mentioned in the news, that I have seen.
This makes a lot of sense, but it also seems to fall apart at one point. Consider:
A person (CCW holder) shoots someone in self defense. They are not charged with self defense... they are charged with (an example) second degree murder as Zimmerman was. Well, he's using self defense as a defense to the second degree murder charge, not as a defense to using self defense.
I'm forced to agree with wprebeck in that innocence is supposed to be the assumption, pending proof of guilt rather than the other way around.
Here, it was a "defense" but defense means the burden in on the defendant/shooter to prove it. The law they are proposing in Florida, and we adopted here, is that there is now a legal "presumption" that you are justified and that puts the burden on the prosecutor to disprove it. When it was a defense, for example, if you went to trial and didn't testify or put on evidence of what you defense was, then the jury could not consider whether you were justified.
Everybody knows that the bad guy is the one with the gun.
The proof of guilt, of murder, for example, only requires the government to prove that you intentionally killed somebody. A self-defense homicide also requires that you intentionally killed somebody. If the prosecutor puts on evidence that "you intentionally shot Joe and Joe died," and you don't put on any evidence, his case is over and you just got convicted.
A defense requires you to add to the proof that you intentionally killed Joe, some reason that intentionally killing Joe was justified.
Even under current Ky. law, there would have to be some evidence that you acted in self-defense (OMG - talking to the POlice!) to reverse the burden of proof and cause the Commonwealth to have to disprove your justification.
Supersized for .99 more ?
No not really.
Innocent of what? The killing?
If you are going to claim Self Defense, you must first Admit to the crime. You are no longer "innocent" as you have admitted guilt.
Once you admit to the killing, it is up to You to prove that you were justified.
"yes, I shot him and killed him, but....." It is up to you to present evidence that you were justified.
If the evidence supports that you did such a thing, and you’re prosecuted for it, and you don’t deny it, then it’s a crime. You can, however, make the case that you were legally justified in your actions, and if you can prove that, then you’re clear. But while establishing that you did the eye-poking is the prosecution’s problem, establishing justification is yours—your burden of proof.
In a typical criminal prosecution, a prosecutor must prove guilt beyond a reasonable doubt, and the burden is on the prosecution to bring forth evidence to prove the charges. That means they must prove the elements of the crime. If you are tried in a state that follows the model penal code, it isn’t too tough to show that your actions were the same as those spelled out in the crime of murder or manslaughter, because the evidence will easily show that you purposely used a firearm to shoot and kill the deceased.
If you plead self defense, the burden of proof shifts to you and you are required to prove by a preponderance of the evidence (51% or greater) that your self-defense act was reasonable under the circumstances because you legitimately feared death or crippling injury and that the force you used was not greater than what was reasonable and necessary
Under the law we have, which I think is what Florida is proposing, it wouldn't really have to be 51% of the evidence. Here, as long as you make a self-defense claim to the police, it looks like that shifts the burden to them to show probable cause to believe that you did not act in self defense (KRS 503.085(2)). So you mainly seem to be overcoming probable cause. If you do that, all prosecution is prohibited so (contrary to what we really do) even presenting the case to a grand jury may not be allowed.
It isn't very well-written or clear.