Gun Forums and Prosecution......?

[hogdogs]

I would hope that my lawyer and I can convince the presiding judge that my computer is not relevant to a SD/HD shooting case. Without my actual hard drive I am a pretty transparent individual as far as basic online search engines go. My only hope is that I can get all of my online posts dismissed as the fiction that they are... You see I am just a 10 year old North Korean kid in my 3rd year of med school that dreams of one day tasting the freedom ya'll Americans take for granted everyday.
P.S. My TFL action on my hard drive is the very least of my worries...
Brent

[OldMarksman]

I would hope that my lawyer and I can convince the presiding judge that my computer is not relevant to a SD/HD shooting case.

And the question is, was it an SD/HD shooting case? If the evidence is clear that it was---consistent witness testimony, security camera evidence, the alleged assailant had a gun, maybe he fired first, your door or car window had been smashed, whatever-- you might well have a very good chance--should the question come up at all. But with all of that , one would hope no one would be that interested in your records or hard drive to start with. It's when sufficient exculpatory evidence is lacking that the issue presents itself.

My only hope is that I can get all of my online posts dismissed as the fiction that they are...

Exactly. But the defendant may have an uphill struggle arguing that he was just joking when he posted that anyone who tries to steal his truck is a dead man, when he has shot someone next to his truck.

Harder yet when limited to yes or no for the answer.

Best strategy is to take care in what you commit to indelible "ink", electronic or otherwise.

[hogdogs]

Yes... I do manage the wording pretty well. I not only refrain from posting such about overly aggressive or illegal actions... I refuse to entertain such as proper living.
Brent

[Frank Ettin]

Let's say you shoot somebody and claim it was self defense. But the evidence is equivocal and one of the eye witnesses contradicts your story. The grand jury indicts you for manslaughter, and you're claiming that you were justified. Now it's not a good shoot until the jury says so.

The Internet is a public place.

[Sarge]

Just a minor point here...it is not the 'lack of exculpatory evidence' that gets people charged with crimes, indicted etc.

It is not the statement of a single witness that gets people charged or indicted. The credibility of each witness, their allegiance to anyone related to the matter under question and the accuracy of their statement is carefully weighed as a part of the charging decision.

What gets people charged or indicted is the proof, via the investigation, of probable cause that a specific person(s) committed specific, codified crime(s).

Grand juries are not stupid. I have testified before them on matters such as these and they ask a LOT of questions.

It is also worth mentioning that the reasonable doubt standard plays a big role in the charging decison and is often the final, and tallest, hurdle before a case is filed.

Now, back your regularly scheduled Legal Boogeyman Thread.

Best advice so far is to not post anything on the Internet, which you wouldn't want attributed to you in open court.

[OldMarksman]

Just a minor point here...it is not the 'lack of exculpatory evidence' that gets people charged with crimes, indicted etc.
....
What gets people charged or indicted is the proof, via the investigation, of probable cause that a specific person(s) committed specific, codified crime(s).

Ordinarily, true, but we have been discussing self defense, which would involve an affirmative defense, in which the lack of evidence justifying the use of deadly force would be damaging to the defense. Here's an excellent explanation, posted by Fiddletown on 23 July:

Ordinarily, in a criminal prosecution the state must prove the elements of the criminal offense beyond a reasonable doubt. So if the crime charged, and for which the defendant is on trial, is manslaughter, the state must in general prove to the jury beyond a reasonable doubt that (1) the defendant was there; (2) the defendant shot the decedent; and (3) the defendant intended to shoot the decedent. In defending the charge, the defendant merely needs to create a reasonable doubt in the minds of the jurors as to any one of these elements. The defendant can try to cast doubt on the state's claim that he was there (alibi defense); that he pulled the trigger (some other dude done it) or that he intended to shoot the decedent (the gun went off by accident). But all of that is completely inapplicable when the defendant pleads self defense.

If you claim self defense, the prosecution doesn't have to prove, at all, that you were there, that you shot the decedent or that you intended to shoot the decedent, because you will have admitted each of those element of the crime of manslaughter. If you are claiming self defense you necessarily must admit that you (1) you were there; (2) you shot the decedent; and (3) you intended to shoot the decedent. You have made a prima facie case against yourself for the prosecutor, and he doesn't have to prove any of the things he ordinarily would have to prove beyond a reasonable doubt. You have admitted it all.

Your defense is that your act of violence on another human being was legally justified. The allocation of the burden of proof burden of persuasion between the prosecution and defense in a self defense case varies from jurisdiction to jurisdiction. But you will at least have to put forward evidence establishing a prima facie case of justification according to the standard applicable to the use of lethal force in self defense in your jurisdiction.

The prosecution will seek to discredit, consistent with the applicable standard of proof in your jurisdiction, your claim of justification. Facts, like your having disabled a safety device on you gun, that might incline your neutral, but unsophisticated about gun matters, jury to think you might be a reckless, trigger happy gun nut obsessed with making your gun the most efficient instrument of violence possible will help the prosecutor in those efforts.

That post happened to apply to a discussion of the potential risks of one's having disabled the safety of a Model 1911 pistol, but it could apply to anything relevant that might influence a jury.

http://www.thefiringline.com/forums/...4&postcount=72

Best advice so far is to not post anything on the Internet, which you wouldn't want attributed to you in open court.

You are certainly right on that! A fair number of people, some well known and some not, have ended up in very great difficulty indeed because they didn't follow that advice when it came to the use of email, and these days, the use of things like "Facebook" and "Youtube" are becoming fertile ground for the creation of such problems. There's nothing to exclude internet fora from that phenomenon.

[Frank Ettin]

Originally Posted by Sarge

...It is not the statement of a single witness that gets people charged or indicted. The credibility of each witness, their allegiance to anyone related to the matter under question and the accuracy of their statement is carefully weighed as a part of the charging decision....

It's not one thing. It the cumulative total of all the evidence. Do you really want some of that evidence to be your intemperate postings on Internet forums?

[Sarge]

'Ordinarily' nothing.

The only way any crime can be charged is for the defendant to have committed each one, of a rather specific set of overt acts ('elements'), any of which would make a person of average intelligence and morals cringe because they would know they were doing something wrong.

The 'burden of proof' for self-defense, which you so eloquently lay upon the shoulders of the defender, exists only if they get charged. It has in my experience been quite easily met by the preliminary police investigation into the matter.

Even in questionable self-defense cases, the investigation must prove each element of any crime that is to be charged. When someone is charged, and the case goes to an indictment or survives the preliminary hearing, those elements have been proven to the satisfaction of a grand jury or magistrate judge.

Those cases in which the elements are not proven, simply don't get filed or they get booted by the prosecutor, grand jury or in the absence of a grand jury, the judge at the preliminary hearing.

No prosecutor is going to go to a jury arguing "He couldn't prove himself innocent so he must be guilty!" The American system of justice is designed from the ground up to prevent it and to cause early exoneration of any person improperly charged.

My only point in posting to this thread is to remind everyone that each investigation begins and ends with equal attention to inculpatory and exculpatory evidence. Police and prosecutors are legally obligated to include both. Yes, the system is imperfect but it is nowhere near the-

"RUN, chillun'! They's lawmen and and persecutors in de bushes, lookin' to charge de innocent with crimes they didn't commit!"

-sentiment that seems to permeate these threads.

Jeez.

PS- Nowhere did I suggest that idiotic postings on the Internet were going to help anyone involved in a defensive shooting. Nowhere.

[Frank Ettin]

Originally Posted by Sarge

The only way any crime can be charged is for the defendant to have committed each one, of a rather specific set of overt acts ('elements'), any of which would make a person of average intelligence and morals cringe because they would know they were doing something wrong....

Okay, exactly what are those elements for the crime of manslaughter? I contend that, in the case of a homicide in which the person who committed the act may have a claim of justification, those elements have been firmly established. A homicide has been committed, and you did it. And there's no doubt that you did it.

The only question now is whether it was justified.

Originally Posted by Sarge

...The 'burden of proof' for self-defense, which you so eloquently lay upon the shoulders of the defender, exists only if they get charged. It has in my experience been quite easily met by the preliminary police investigation into the matter....

In many cases the investigation will established that a good claim of self defense exists. And in such cases, it will go no further (except that there could still be a civil suit in many jurisdictions).

But unlikely things have a way of nonetheless happening. Basically good people have used their guns in what they honestly thought was proper self defense and still found themselves on trial for aggravated assault or manslaughter. Some of the time they have won, and some of the time they have lost and gone to jail.

Everyone who has ever been on trial after a self defense shooting probably thought (at least somewhere in the back of his mind) as he pulled the trigger that he was right -- that he had no choice. But the fact that he wound up on trial shows that in the aftermath the prosecutor found good reason to challenge the claim of justification and to believe that he could get a jury to agree.

Originally Posted by Sarge

...Even in questionable self-defense cases, the investigation must prove each element of any crime that is to be charged. When someone is charged, and the case goes to an indictment or survives the preliminary hearing, those elements have been proven to the satisfaction of a grand jury or magistrate judge....

But again, what are those elements? A homicide has been committed, and there is no doubt that you did it and that you intended to do it. You will have effectively stated somewhere in the course of the investigation, "That man attacked me, and I shot him in self defense." By stating that you shot him, you have admitted the elements of a criminal homicide committed without malice. If the investigation shows sufficient vulnerability to your self defense claim, you will be charged; and supporting your self defense claim will be up to you. But the prosecution now doesn't have to prove that you shot him and that you intended to shoot him -- because you have admitted it.

Now, in a self defense case involving a homicide, the prosecutor may not be able to establish one of the elements of the crime of murder, i. e., that the homicide was committed with evil intent or malice; but there is no doubt that you committed the homicide, and that establishes a prima facie case of manslaughter -- unless the homicide was justified.

[OldMarksman]

Here's something worth reading on the subject, written by an attorney for attorneys:

http://www.nacdl.org/public.nsf/01c1...ocument&Click=

Some relevant excerpts:

Many assumptions about trial tactics are inverted in a self-defense case. If the defendant presents some evidence on each of the elements of self-defense, then he or she is entitled to a jury instruction on the issue, which places the burden of proof squarely on the prosecutor to disprove self-defense beyond a reasonable doubt. If the prosecution fails to disprove self-defense, the client is acquitted. In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes.

The following describes the actor's need for favorable evidence (upon reflection, I think my earlier use of the term "exculpatory" was probably inappropriate):

At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors [justifying self defense, indented below] in order to receive an appropriate jury instruction.

The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.

The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.

The danger was such that the client could only save himself or herself by the use of deadly force.

Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use.

Thus, it is not a self-defense case if:
Counsel cannot present some minimal evidence on all of the self-defense factors.

The above describes the way an affirmative defense is brought to bear. The last sentence of the following points out the risks that might be created by the existence of evidence that the prosecutor could try to use to establish state of mind:

Once the attorney has settled on a self-defense strategy, he or she will need to think about what facts should be established and challenged in order to successfully defend the case. There will be some facts which the prosecution and police investigators believe are inconsistent with self-defense. Counsel will have to wrestle with these facts and be able to explain to the jury why they do not disqualify the client from self-defense.

And, of course, there are risks that evidence might be introduced that could damage the actor's credibility--e. g., "dead men do not tell tales; the police will only have my side of the story."

I should think that the obvious existence of clear favorable evidence, such as supportive eyewitness testimony, security camera "footage", the fact that the decedent had a weapon and perhaps had fired it, maybe a 911 tape, etc. would likely preclude the filing of criminal charges, if not a civil suit.

When none of that exists it can a little more dicey. A person is out alone at night, and encounters someone. There is a shooting. The decedent turns out not to have had a weapon (younger, bigger, stronger, perhaps, but not armed). There are no witnesses, or if there are, their recollections are contradictory or inconclusive. The shooter claims self defense. But who would not make that claim? At that point, it is necessary to try to determine just what did happen.

If it goes to trial, that means that the state believes that they have a strong case, and it would be best for the defendant to not have created any baggage that could turn out to harm his defense.

[Wildalaska]

Rant:

The good old NACDL

Sharks. Bottom Feeders. Lets kill all the Lawyers and all the rest of the crap that gets posted here.

Remember their motto: Liberty's Last Champion. Bet Harold Fish loves his lawyer.

But I digress.

I have an easier way to explain it. Never put anything in writing that would make you squirm if someone read it to a buch of strangers....otherwise known as

A closed mouth gathers no foot.

WildthinkaboutitAlaska TM

[Wagonman]

I have received memos regarding the fact that Facebook and Myspace etc are discoverable by defense attorneys. So I use the front page of the newspaper standard. Whatever I post anywhere I view thru this prism.

[Jason607]

Well, just about anything can be used against you if someone thinks it can help them against you. Are you a southern white male? Well, if the BG that tries to kill you is non-white, they might try to say that because you are a southern white male you have a inbedded hatred against minorities and try to use footage from the 1960's agaisnt you even if you weren't alive back then. I actually remember hearing about a home invasion where the homeowner shot the perp who was black, and he had a confederate battle flag hanging on a wall and they tried to get him indicted based upon that, saying if the perp was white he wouldn't have pulled the trigger.

Anything you say can also be taken out of contex. Anything about you can be re-arranged to try to make things seem different than they are. Not saying something can get you in the whole too.

It seems as though most people on these gun forums paint a picture of a trail where the prosecution sets the whole thing up, they choose the evidence, they choose the jury, they choose the judge, and get to present thier case unchecked, and can do whatever they want without penatly. This is WRONG. First of all, they have to prove you did something ILLEGAL first, and all evidence they will have to first prove it is relavant to the case. They want the trial, so when it comes down to it, the defense can put forth guidelines of thier own. The prosecuation can not insist on an anti-gun liberal jury... well they can but the defense can just keep dismissing jurers all day long because they will have probable cause to do so. It's the DA that wants to put you on trial, so he's going to have to compromise more if he wants that trial. Then they have to prove without reasonalbe doubt that your broke the law and that's next to impossible with off the wall crap evidence like that. Then he will have to explain to his superiors how he wasted god knows how much money on a dead end case. Lets not forget Kenneth Nifong, the DA of the Duke Rape Case. He tried everyhing he could in his power despite the evidence that said otherwise, but he pulled out little crap evidence and he ended up becomming the one on trial and ended up with a criminal conviction.

You know what will get you in boatloads of trouble? LIES, or just being untruthfull.

[Wildalaska]

Are you a southern white male? Well, if the BG that tries to kill you is non-white, they might try to say that because you are a southern white male you have a inbedded hatred against minorities and try to use footage from the 1960's agaisnt you even if you weren't alive back then.

No they wont, and cant.

I actually remember hearing about a home invasion where the homeowner shot the perp who was black, and he had a confederate battle flag hanging on a wall and they tried to get him indicted based upon that, saying if the perp was white he wouldn't have pulled the trigger.

Bullpucky

T the defense can just keep dismissing jurers all day long because they will have probable cause to do so.

No they cant and probable cause is meaningless in the context of which you speak

It seems as though most people on these gun forums paint a picture of a trail where the prosecution sets the whole thing up, they choose the evidence, they choose the jury, they choose the judge, and get to present thier case unchecked, and can do whatever they want without penatly

You ever tried a criminal case? I have and I see little of what you are talking about.

WildstudyupAlaska TM

[Hkmp5sd]

Don't ever post anything online anonymously that you would not be willing to post under your own name on the front page of the daily paper -- or have your mother read.

I just wish the daily paper would let me post articles on the front page!

[Sarge]

You know what will get you in boatloads of trouble? LIES..l.

...and there is the second point of light from this discussion.

If you're going to talk, tell the truth.

If you're going to lie, you'd be better off not talking at all.

[Frank Ettin]

Originally Posted by Jason607

Well, just about anything can be used against you if someone thinks it can help them against you....

Sure, and sometimes you help that happen. Things you say and do reflect things about the kind of person you are, your values, your beliefs. So if you walk around wearing swastikas, if you receive white supremacist material in the mail, and if you commonly make racist and antisemitic statements in public, if the synagogue down the street gets torched, you are going to be one of the first people the authorities will want to talk with. And if you're charged, all those things, as well as any racist and antisemitic screeds you may have posted on the Internet will be used in evidence by the prosecution to help show intent and motive.

Originally Posted by Jason607

...people on these gun forums paint a picture of a trail where the prosecution sets the whole thing up, they choose the evidence, they choose the jury, they choose the judge, and get to present their case unchecked,...

Not quite.

[1] The prosecutor does indeed get to choose what evidence, from the available evidence, he presents, and how he presents it, subject to the applicable rule of procedure and evidence. So does the defense. But some of your potential and avoidable problems can come from the evidence that you have created -- things you say and things you have posted on the Internet that may bear on something at issue in the case -- and thus made a present of to the prosecutor. You could have avoided creating this evidence which now exists to be used against you, if the prosecutor wants, by being more careful about the things you say in public to strangers.

[2] Of course the prosecutor doesn't choose the jury. But neither does the defense. The jury pool is chosen at random from voter registration records and/or drivers license lists or some other public records listing people living in the community. This panel of prospective jurors is questioned by each side. He side can dismiss a specified number without cause (peremptory challenges) and an unlimted number for cause (challenges for cause).

So the prosecutor won't get his jury of Brady Bunch members, but you also won't get your jury of Gun Owners of America members. You'll have a middle of the road jury usually with no special interest in or knowledge of guns.

[3] The judge is usually selected on the basis of some rotation and/or based on who has time on his schedule for the case. Each side typical has one shot a declining a judge for no reason.

Originally Posted by Jason607

... the defense can just keep dismissing jurers all day long because they will have probable cause to do so....

Don't be too sure about that. To dismiss a prospective juror for cause, the side making the challenge must be able to convince the judge that there is actual prejudice or that the particular juror can not be impartial. Some judges take an awfully lot of convincing.

Originally Posted by Jason607

...Then they have to prove without reasonalbe doubt that your broke the law...

In case you haven't been following the posts above, remember that in the case of an assault or homicide to which you're pleading self defense you have already admitted the acts constituting the crime.

Originally Posted by OldMarksman in post 35 quoting the NACDL

Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing.

Originally Posted by OldMarksman in post 35 quoting the NACDL

....If the prosecution fails to disprove self-defense, the client is acquitted. In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes.

Originally Posted by OldMarksman in post 35 quoting the NACDL

...There will be some facts which the prosecution and police investigators believe are inconsistent with self-defense. Counsel will have to wrestle with these facts and be able to explain to the jury why they do not disqualify the client from self-defense.

Originally Posted by Jason607

...Lets not forget Kenneth Nifong, the DA of the Duke Rape Case....

And what does a crooked, insanely ambitious and unethical prosecutor, who destroyed his career have to do with anything?

[Sarge]

Self defense is not a crime. The only 'crime scene' related to it is the scene of the crime that led to the defensive application of force.

To an earlier question asking 'what are the elements?' which must be proven, I simply answer 'depends on your state's statutes'. I would think in this crowd of apparent attorneys, legal experts or people who play them on TV- the question would not have even been necessary.

[Frank Ettin]

Originally Posted by Sarge

Self defense is not a crime...

Intentionally hurting or killing someone is a crime absent a good defense, justification. Self defense is the defense to the act. The place at which one used force is treated as a crime scene. It is kept a sterile as possible. Evidence is identified and collected. And the entire event is investigated as a crime until either the conclusion is reached that the claim of self defense is valid or that it is vulnerable, and charges will be brought.

Originally Posted by Sarge

To an earlier question asking 'what are the elements?' which must be proven, I simply answer 'depends on your state's statutes'....

Nope, the elements of assault or of manslaughter go back to the Common Law. They may have been codified under the statutes of various states. And they will be essentially the same although there may be some variation in terminology. The bottom line is, Sarge, that I am an attorney, and you are not. You may want to go back and hit the books some again.

Originally Posted by Sarge

I would think in this crowd of apparent attorneys, ...the question would not have even been necessary.

The question was asked because you seemed to have some difficulty with the analysis. I know the answer and have stated it.

[Jason607]

Fiddletown, you made some great points. Good post.

And what does a crooked, insanely ambitious and unethical prosecutor, who destroyed his career have to do with anything?

Well, it proves that the Prosecution has limits and boundries.

I think that as long as it's a legit shoot and you tell the truth and don't say anything too stupid, and use your brain, preferably your lawyers, you'll be good to go.

A civil case might be a bit hairy but unless the BGs love one's have a ton of money, or you have a ton of money, it's not going to happen. Civil trials are about money, and no lawyer is going to take a case unless he's getting paid or there is a chance of a big payout that is good enough. There isn't enough money they can squeeze out of most of us to make it worth it and most don't have the money to hire a lawyer to come after you.

[Sarge]

Quote:
Originally Posted by Sarge
Self defense is not a crime...

Intentionally hurting or killing someone is a crime absent a good defense, justification. Self defense is the defense to the act. The place at which one used force is treated as a crime scene. It is kept a sterile as possible. Evidence is identified and collected. And the entire event is investigated as a crime until either the conclusion is reached that the claim of self defense is valid or that it is vulnerable, and charges will be brought.

...and despite that wordy reply, self defense is still not a crime. If it is self defense, then no PC Affidavit will issue and no charge will be sought. Of course the PA/DA will be kept appraised of investigation as it develops, but if it is clear-cut self defense then I'm sure as hell not signing an affidavit swearing it's a criminal homicide.

Quote:
Originally Posted by Sarge
To an earlier question asking 'what are the elements?' which must be proven,
I simply answer 'depends on your state's statutes'....

Nope, the elements of assault or of manslaughter go back to the Common Law. They may have been codified under the statutes of various states. And they will be essentially the same although there may be some variation in terminology. The bottom line is, Sarge, that I am an attorney, and you are not. You may want to go back and hit the books some again.


Nobody is going to be criminally charged under the 'common law' and you know it. If charged at all, they are going to be charged under the criminal code. As to your comment "I am an attorney, and you are not", I thank you for the compliment. If you'd be so kind, please enlighten us as to which 'books' have more relevance to the matter at hand than the criminal code of the defender's home state?


Quote:
Originally Posted by Sarge
I would think in this crowd of apparent attorneys, ...the question would not have even been necessary.

The question was asked because you seemed to have some difficulty with the analysis. I know the answer and have stated it.

No, you dodged into irrelevant banter about 'common law' as if it applied to filing of criminal charges.

My suggestion to each of you is to study your state's laws regarding the justification of force, in self defense. If you have questions, contact your district attorney or attorney general. They will likely refer you right back to the statutes I just mentioned, but it's worth a shot.

My apologies for my part in the sideways drift of this thread. I'll sit it out from here on.

[OldMarksman]

....and despite that wordy reply, self defense is still not a crime. If it is self defense, then no PC Affidavit will issue and no charge will be sought.

If it is clearly self defense the actor should be home free, at least from the standpoint of criminal procedure.

The question is, and has been from the beginning of this discussion, is it self defense? One person has shot another. That is not in question. The question is, was it self defense, or was it not?

If the charging authority has reason to believe that it was not, the process starts.

If that process should lead to a trial in court, the defendant must present evidence to try to demonstrate justifiability--in simpler terms, to try to show that his act did indeed constitute lawful self defense, and not manslaughter or accidental homicide or whatever the state may allege.

And the prosecution will present evidence to the contrary. That's the key here. It is just possible that that evidence will include postings made on an internet forum. And that's the point of this thread.

[Frank Ettin]

Originally Posted by Sarge

...and despite that wordy reply, self defense is still not a crime...

But unless and until the DA has decided to accept the claim of self defense, it will be investigated as a crime.

Originally Posted by Sarge

...Nobody is going to be criminally charged under the 'common law' and you know it. If charged at all, they are going to be charged under the criminal code....

You miss the point. We are discussing general legal principles. And since the crime of manslaughter is an ancient crime, the state codes in general will have adopted the historic elements of the crime in their statutory definitions. So state code definitions of the crime of manslaughter will be substantially the same, even though the terminology may vary. There may be minor differences from state to state, but for the purposes of our discussions, those differences are immaterial.

I defined the elements as OldMarksman quoted me

Originally Posted by OldMarksman in post 31 quoting fiddletown

...So if the crime charged, and for which the defendant is on trial, is manslaughter, the state must in general prove to the jury beyond a reasonable doubt that (1) the defendant was there; (2) the defendant shot the decedent; and (3) the defendant intended to shoot the decedent....

The elements of assault or aggravated assault were also similarly defined in the NACDL publication quoted by OldMarksman

Originally Posted by OldMarksman in post 35 quoting the NACDL

...being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor....

These definitions are substantially the same for the purposes of this discussion. The point is that if you are claiming self defense, a prosecutor doesn't have to prove those elements of manslaughter or assault, as applicable because you have admitted them.

Originally Posted by Jason607

...it proves that the Prosecution has limits and boundries....

Yes the Nifong story does illustrate limits as well as retribution for grossly unethical behavior. Of course, fortunately a prosecutor like him doesn't come along often.

Originally Posted by Jason607

I think that as long as it's a legit shoot and you tell the truth and don't say anything too stupid, and use your brain, preferably your lawyers, you'll be good to go...

Just never lose sight of the fact that in a given case there may be some disagreement about whether or not it was a legit shoot. So it helps to recognize before hand that might be a possibility, and it's a good idea to be prepared for the possibility. One thing you can do to prepare is to watch what you say in public and to strangers.

[park ranger]

Although not an incident of self protection, something that occurred in Pennsylvania...

http://www.post-gazette.com/pg/09197...cmpid=news.xml

Man testifies why he took his gun to Obama rally
Says 'quiet protest' was the intention
Thursday, July 16, 2009

By Daniel Malloy, Pittsburgh Post-Gazette

A tree trunk of a man with a Glock on his hip, John Noble went to a rally for then-Sen. Barack Obama in Beaver last year to hand out pro-gun pamphlets as a "very quiet protest," he testified yesterday.

His arrest on charges of disrupting a public gathering resonated loud and clear throughout the Pennsylvania gun rights world, and several supporters checked their sidearms at the door of the Beaver County Courthouse yesterday as Mr. Noble's trial opened.

Jurors are scheduled to hear closing arguments this morning then begin deliberations.

Yesterday they watched as Mr. Noble, sporting a yellow shirt, brown tie and Fu Manchu mustache, took the witness stand to explain why he brought his gun to the Aug. 29 outdoor rally.

Mr. Noble, 51, of Industry, carried his Bible and pamphlets on gun rights on the outskirts of the crowd gathered in a park across the street from the courthouse. On his hip, as usual, was a pistol.

Mr. Noble testified that he was making a statement related to Mr. Obama's much-publicized comments at a San Francisco fundraiser during the primary campaign, in which he said Pennsylvanians "cling to guns or religion." Mr. Noble said he was there to educate his fellow citizens on their rights to carry a firearm in the open -- which Pennsylvanians are allowed to do, without a permit, almost anywhere. A permit is required for concealed carry and in certain other situations.

"I didn't see any reason why I would be arrested," he said.

John Atkinson, of Beaver, testified that he alerted authorities after spotting the weapon.

"I was scared for my family because it's the situation of it -- the first black guy nominated to be president of the United States," Mr. Atkinson said, "All the crazy things people do these days, you never know what's going to happen."

The gun was legal, but state police Trooper Shawn Schexnaildre decided to charge Mr. Noble with disrupting a public gathering, a third-degree misdemeanor.

When cross-examining Trooper Schexnaildre, defense attorney Stephen Colafella compared Mr. Noble to anti-abortion protesters, who also attended the rally.

"It's normal to show up with picket signs," the trooper responded. "He showed up with a pistol."

In order to win a conviction, prosecutors must prove that Mr. Noble intentionally started a disturbance.

The intent comes from posts on two gun rights blogs Mr. Noble made before the rally that Assistant District Attorney Frank Martocci described as a "call to arms."

On opencarry.org, Mr. Noble wrote, "Come to beaver tonite [sic] and show Obama what a Bible toten gun owner really looks like." The posts seem to undercut his assertion on the stand that he was not offended by Mr. Obama's comments.

Beaver County Judge Harry E. Knafelc, in dismissing a motion by Mr. Colafella asking for a judgment of acquittal, said he would have thrown the case out if not for the blog posts.

But, despite the Internet bluster, was there a disturbance at all? The commotion came only after police arrived and put him in handcuffs.

Beaver County Sheriff's Deputy Sgt. Richard Yonlisky testified that when he detained Mr. Noble, he asked why Mr. Noble brought the gun.

Mr. Noble responded, "Because I'm an American."



Read more: http://www.post-gazette.com/pg/09197...#ixzz0LpwgAoO0


As an end note, he was acquitted today of all charges.

Personally, I think the reporter, Malloy, did a great job of summarizing the information and I was pleasantly surprised that no personal opinion or views were injected into his article. Now, if we can just get him an anchor spot on one of the major networks, maybe we can get unbiased and objective reporting.

[hogdogs]

And on the golden side of the coin... be ready to hand over the links to your lawyer so your defense team can pull up every single post you made that you proclaim that you are only prepared to defend your life and the lives of loved ones. Also all those posts that recount your neutral, non-prejudiced way of life. Your intent to to never scare anyone etc. too.
If you proclaim to be the cowardly lion with physical limitations can't hurt either
Brent