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Old June 13, 2017, 11:03 PM   #1
mrcharlie3531
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Florida stand your ground law has changed..

Associated Press) Florida is now the first state with a law that spells out that prosecutors, and not defendants, have the burden of proof in pretrial “stand your ground” hearings.

Republican Gov. Rick Scott signed a bill Friday that will force prosecutors to prove during a pretrial hearing that defendants weren’t acting in self-defense when they committed an act of violence. The law took effect as soon as Scott signed it.

Before Friday, the burden of proof in pretrial hearings was on defendants. The Florida Supreme Court issued a ruling in 2015 that made that clear. Republican lawmakers responded to the ruling by pushing the bill Scott signed.


Read more at http://www.wnd.com/2017/06/florida-l...RP0KrXQLvYB.99

I am a Marine Corps Veteran. I protect my home with loaded firearms. I don't wait for the police to show up. I live in a rural area. I would be amazed if they found my in a timely manner.
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Old June 13, 2017, 11:23 PM   #2
turtlehead
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And isn't that the side the burden of proof should be on?
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Old June 14, 2017, 12:00 AM   #3
Sawyer.N
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^^ this bill seems to be in favor of those who may have to defend themselves, their family and their property. This is further protection from regrettable legal aftermath in the unfortunate event of defending your life in your home.
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Old June 14, 2017, 02:23 AM   #4
Frank Ettin
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Quote:
Originally Posted by mrcharlie3531
Associated Press) Florida is now the first state with a law that spells out that prosecutors, and not defendants, have the burden of proof in pretrial “stand your ground” hearings.

Republican Gov. Rick Scott signed a bill Friday that will force prosecutors to prove during a pretrial hearing that defendants weren’t acting in self-defense when they committed an act of violence. The law took effect as soon as Scott signed it.....
Has anyone here actually read the new law? One can not understand a law by reading about it in the popular press. One must read the actual law (and any relevant case law).

Let's see what the real story is.

The Florida bill, SB-128 Burden of Proof adds the following to 776.032 (emphasis added):
Quote:
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection.
So first this applies at a pre-trial hearing on the self defense claim, and in order to shift the burden to the prosecution, the defendant must produce evidence sufficient to support prima facie the self defense claim.

In general (not State specific) terms in litigating a self defense claim each party has his respective burdens in court of (1) production (producing evidence); (2) proof; and (3) persuasion.
  1. If a defendant is on trial for a crime involving violence against another person, and if the defendant is claiming self defense or justification to avoid criminal liability, he needs the judge to instruct the jury about self defense. The judge isn't going to do that just because the defendant asks. There will need to be some amount of evidence supporting his claim of self defense. How much, or what type, of evidence will have to be in the record in order to require the judge to give a self defense instruction will vary from State to State.

  2. If the defendant can get his self defense instruction, the prosecution must generally overcome the claim of justification in order to get its conviction. Generally the burden of proof on the prosecution in such cases will be "beyond a reasonable doubt."

  3. In a few States, however, the defendant will have the burden of proving justification by a preponderance of the evidence.

  4. But the practical reality is that, in any case, the less convincingly the evidence, taken as a whole, supports the defendant's self defense claim, the easier it will be for the prosecution to overcome the defendant's claim of justification. And if the defendant has a serious hope to escape conviction on the basis of justification, he will, as a practical matter, want to assure that there will be sufficient, convincing evidence supporting his claim.

A significant feature of Florida law has been the availability of a pre-trial hearing on the question of justification. That has been in place for a number of years, and worked as follows before this new law was enacted:
  1. There will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

    In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

  2. Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial. Florida has established a slightly different procedure.

    1. In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:
      Quote:
      We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.
    2. And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:
      Quote:
      Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...
    3. Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --

      1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and

      2. The court would hold an evidentiary hearing on the motion; and

      3. The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.

      4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.

  3. The law affects each party's respective burdens of (1) production (producing evidence); (2) proof; and (3) persuasion.

    1. While before the defendant at a pretrial hearing had to prove by a preponderance of the evidence justification.

    2. Now the defendant has the burden of merely producing evidence sufficient to make a prima facie case of justification. If the defendant can do so, the prosecution then has the burden of proving by clear and convincing evidence that the defendant was not justified in his use of force.

    3. So yes, the burden of proof has been shifted to the prosecution in a pretrial justification hearing. But the defendant still has the burden of production (of evidence supporting his self defense claim). And the less convincing the defendant is, the easier it will be for the prosecution to sustain its burden of proof.
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Old June 14, 2017, 07:03 AM   #5
Don P
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I am a Marine Corps Veteran. I protect my home with loaded firearms. I don't wait for the police to show up. I live in a rural area. I would be amazed if they found my in a timely manner
What does this have to do with the"stand your ground law"? Here in FLA we do have the castle doctrine. You most certainly can defend yourself and family members in the home, BUT neither current law (stand your ground & the castle doctrine) does not turn/allow your home to be turned into an execution chamber.
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Old June 14, 2017, 10:14 AM   #6
Frank Ettin
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Folks, this change to the law has nothing whatsoever to do with "stand-your-ground." Let's stay on topic.
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Old June 15, 2017, 08:24 AM   #7
Don P
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Correct Frank, folks don't seem to understand how and when and why "stand you ground" was introduced debated and signed into law. Simply put before the law was passed, when out in public (legally allowed to be). If you were attacked and had a CCW you were expected to retreat and withdraw from the situation. I know this is very simplified explanation of the old laws in FLA. Under the castle doctrine law in FLA you were never expected to retreat, so therefore claiming stand your ground is a mute point. The term is way overused here.
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Old June 15, 2017, 08:22 PM   #8
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In my state (Kentucky), once a motion to invoke the immunity is made, the prosecution only has to show the defendant is not immune based upon a probable cause standard. The judge decides the issue with only the evidence already in the record --- primarily police reports and the like. The defendant cannot even file affidavits.
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