By using this site, you agree to our Privacy Policy and our Terms of Use. Close
sundin13 on 16 May 2020
Edit Thread
JWeinCom said:
sundin13 said:

While you are mostly correct, I don't believe that counters what I had said. Typically (and this does appear to be the case in GA), the defendant does have to produce some evidence of self-defense, meaning more than simply saying so, before the burden of proof shifts to the prosecution. Small difference which doesn't really have any functional impact here in this case.

Like I had previously stated, I wouldn't stake my case on this single condition, but that does not mean that it is not a relevant condition and if I were a lawyer, I would likely bring it up as one of the many reasons why "self-defense" is not valid in this case.

No... that's just not the case.  Burden of proof is on the prosecution for any justification defense *at trial*.  It's not a "typically" thing, it doesn't shift from jurisdiction to jurisdiction, this is a cornerstone of criminal law.   The defense does not need to say anything more.  However, if they don't make their case to the jury, they're probably going to find in favor of the prosecution.  If the defense can prove there is no case before trial, they can have the charges dropped, but if we're talking about an actual trial, then burden of defense is on the prosecution. 

Shooter says "I believed I was was acting lawfully and I was attacked with unlawful force".  What argument could you possibly make against that? If you were a lawyer, you actually don't want to throw the kitchen sink at a case.  When one of your points is easily blown up, that loses credibility.  You don't want to lob a softball to the other side.

Since "self-defense" is an affirmative defense it changes a few things at trial. Basically, because it is an affirmative defense, you are presenting new facts into the case, not disputing the ones which are available, so you take some burden of proof onto yourself. The level of this does vary by jurisdiction and time (it seems that a lower burden on the defendant is becoming much more common).

"Some states may require defendants to prove self-defense by a “preponderance of the evidence,” while others require them to simply raise a plausible basis for it, and the prosecution to disprove it beyond a reasonable doubt."

https://www.nolo.com/legal-encyclopedia/burdens-proof-criminal-cases.html

That said, I'm not really sure why we are arguing about this and I don't really see any benefit in continuing to go in circles regarding legal strategy. I believe there is more to this point than you do, but we seem to both largely agree on basically everything here, so lets agree to agree and move on...

Last edited by sundin13 - on 16 May 2020