View Single Post
Old September 15, 2012, 07:44 PM   #105
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,926
Quote:
Originally Posted by Marquezj16
Quote:
Originally Posted by Frank Ettin
You will not have the final say on whether or not your use of lethal force was justified. Other people will be deciding that. So if you think you were justified but the DA and/or grand jury disagree, it's not a "good shoot" unless your trial jury decides that it was. See, for example --
With this sentence you imply all shooting incidents go to trial and therefore requires a trial by jury.

You pretty much make it as though a shooter is guilty until proven innocent.
I don't see how you can possible reach that conclusion.

[1] It is true that you will not have the final say on whether or not your use of lethal force was legally justified. The matter will be investigated.

[2] If the DA and/or grand jury conclude that there is probable cause to believe that your intentional act of violence was a criminal act and not legally justified, you will be prosecuted. That is a true statement.

[3] That is not to say that every use of force in self defense will be prosecuted. If the DA and/or grand jury conclude that you were justified to intentionally shoot that person, you will not be prosecuted.

[4] But in any case, intentionally hurting or killing another person is prima facie a criminal act. Our law recognizes that under some conditions such an intentional act of violence may be legally justified and thus relieve the actor of criminal responsibility. But if claiming self defense you will of necessity have admitted that you intentionally hurt or killed another human being. Your defense will be that your act of violence was legally justified. Thus unless and until your act of violence is determined to be justified, it will be investigated and processed as a crime.

[5] How Pleading Self Defense Works If You Are Charged

In general, if you're accused of a crime it's up to the State to prove your guilty beyond a reasonable doubt. But things work a little differently if you are pleading self defense.

Basically --

[a] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step b.

[b] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[c] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all elements necessary under the applicable law to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the less convincing your story, and your evidence, is, the easier it will be for the prosecutor to meet his rebuttal burden.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
 
Page generated in 0.04763 seconds with 7 queries