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Old October 16, 2015, 01:46 PM   #124
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,215
Quote:
Originally Posted by TimSr
In Ohio it shifted the burden to the state to prove the shooting was NOT justified. That was its greatest impact here.
No, that is incorrect, as previously pointed out to you in this post:
Quote:
Originally Posted by Frank Ettin
Have you got some legal authority for that? According to this article that was not the case as of July of 2013:
Quote:
Of the 50 states in the US, 49 of them require the State to disprove a defendant’s claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence....
Here's the relevant Ohio law (2901.05 Burden of proof - reasonable doubt - self-defense):
Quote:
2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. 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, is upon the accused.

(B)
(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2)
(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.
(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.
(C) As part of its charge to the jury in a criminal case, the court shall read the definitions of "reasonable doubt" and "proof beyond a reasonable doubt," contained in division (D) of this section.

(D) As used in this section:
(1) An "affirmative defense" is either of the following:
(a) A defense expressly designated as affirmative;

(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.
(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent.

(3) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.

(4) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.
(E) "Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.
Let's break that down to try to understand it:
  1. Self defense would be an affirmative defense (as defined at 2901.5(D)(1)) to a criminal charge relating to an alleged unlawful use of force.

  2. Therefore, if the accused claims self defense, as provided in 2901.5(A):
    Quote:
    ...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, is upon the accused.....
  3. However, 2901.5(B)(1) provides, in pertinent part (emphasis added):
    Quote:
    ...a person is presumed to have acted in self defense or defense of another ... if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force....
    1. To understand what that means we need to understand what a "presumption" is.

      1. A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

      2. So 2901.5(B) provides that under certain circumstances one does not have to prove the elements of self defense directly; he will be presumed to have used force in self defense. However, to have the benefit of that presumption, certain facts must be true; so the accused will have the burden of producing evidence and proving those facts, i. e., that:
        Quote:
        ...the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force. ...
      3. Note also the the presumption provided under (B)(1) will not apply under the circumstances described (B)(2).

  4. The presumption provided under (B)(1) is rebuttable by a preponderance of the evidence (2901.5(B)(3)).

  5. So if the accused claims self defense, under Ohio law he will either have to prove the elements of self defense by a preponderance of the evidence or prove that the predicate facts entitling him to a self defense presumption under 2901.5(B)(1) were true.
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