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Old November 15, 2008, 07:26 PM   #28
OldMarksman
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Join Date: June 8, 2008
Posts: 4,022
From Ricky B:
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According to a treatise that I looked at, the majority of states allow the defendant to stand his ground and not retreat.
May be.. Missouri is listed in wikipedia as having a stand your ground law, but I was referring to one that would apply outside. From Wikipedia: "States often differentiate between altercations occurring inside a home or business and altercations in public places; there may be a duty to retreat from an assailant in public when there is no duty to retreat from one's own property, or there may be no duty to retreat from anywhere the shooter may legally be."

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That said, it doesn't matter what the majority rule is. It only matters what the rule is in the state where the events take place.
True fact.

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As to the burden of proving an affirmative defense, I believe it wil vary by state. In some states, you are no doubt correct. All the defendant would have to do is produce sufficient evidence to raise a triable issue and the prosecution would have to negate it by the usual standard of "beyond a reasoanble doubt." In other states, the defendant might have to prove his defense by a preponderance of the evidence, meaning it's more likely than not true what he claims. Again, it doesn't matter what the majority rule is, only what applies in the state where the events take place.
We still need a lawyer.

An attorney friend of mine says the burden always falls to the prosecutor in a criminal case.

And to my lay understanding, the distinction between the reasonable doubt and preponderance of the evidence criteria has to do with the difference between a criminal trial and a civil suit.

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But even where the standard is to produce sufficient evidence to raise a triable issue, that may mean that the defendant is forced to take the stand to provide it, and many a defendant has been convicted as a result of taking the stand and being a terrible witness when cross-examined.
Or as a result of the evidence of being convincing.

Don't take this as argument. I think we agree on the principles here.
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