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  •  No, not every state. (0+ / 0-)

    How about just Florida for now? I'll do some more digging when I'm at home (I'm on my iPhone hence the typo).

    And you didn't cite "legal scholars" plural. You cited one book, and as the former prosecutor pointed out, there are tons and tons of books written by credentialed authors - many of whom have fringe opinions (like the guy who wrote that Miranda rights should not apply).

    I never denied the that some states use the POE standard for self defense. I believe even in Ohio there are special circumstances (like in your own home) where it reverts to beyond a reasonable doubt.

    Please proceed, Governor.

    by USArmyParatrooper on Mon Jul 01, 2013 at 11:19:49 AM PDT

    [ Parent ]

    •  I had an entirely different ref in my previous (0+ / 0-)

      diary.  Which cited a number of other different people and settled case law.

      Florida is often cited as having among the strongest standards  on self defense in favor of the defendant in the US with its controversial "Stand your ground" law, which replaced the standard Castle Doctrine there.  Slate has an article about how extreme Florida's law is.  Mother Jones calls it "some of the broadest firearms and self-defense regulations in the nation".  And the hardliners in Florida are trying to go even further.  But even in Florida the jury instructions nonetheless read:

      If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

          However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

      Your eyes are probably immediately fixating on the first part - "If in your consideration of the issue of self-defense you have a reasonable doubt on the question" - a direct result of Stand Your Ground.  But it's actually the second part that the hardliners in Florida trying to change.  A proposed amendment modifies the second to read:
      However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.
      As it stands, that part does not exist.  Hence, as it stands, even in Florida, quite likely the most pro-self-defense-claim state in the US, a juror can defend their decision to convict by stating that they are "convinced" that it was not self defense and all of the elements of the charge have been proven. A juror being "convinced" of an argument is a clear and convincing evidence standard.  If the amendment goes through that will no longer fly and the jury instructions will clearly be "beyond a reasonable doubt", but as it stands, those are the jury instructions.

      Even in the state with "some of the broadest firearms and self-defense regulations in the nation"

      •  Oh, good lord. (0+ / 0-)

        First of all Zimmerman's attorney decided NOT to try for a dismissal based on the Stand Your Ground law, so that statute doesn't even apply to his case.

        You efforts to get me to ignore the fact that REASONABLE DOUBT was the only threshold required for him to walk free... nice try.

        If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
        I interpret that to mean if in their consideration of the issue of self-defense they have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, they should find the defendant not guilty.

        Hey, wait a minute. That's EXACTLY what was said. Amazing.

        Please proceed, Governor.

        by USArmyParatrooper on Mon Jul 01, 2013 at 03:13:13 PM PDT

        [ Parent ]

      •  And also.. (0+ / 0-)

        GA 3.00.00 Affirmative Defense; Definition; Burden of Proof

        Here's another one.

        State: Georgia

        GEORGIA CRIMINAL JURY INSTRUCTIONS (G.C.J.I. 2003)

        GA  3.00.00 Affirmative Defense; Definition; Burden of Proof

        An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Once the issue of an affirmative defense (except the defense of insanity*) is raised, the burden is on the State to disprove it beyond a reasonable doubt.

        O.C.G.A.§~16-l-3, 16-3-28

        State v. Moore, 237 Ga. 269 (1976)

        By Andrew Branca, Attorney at Law|January 14th,

        Please proceed, Governor.

        by USArmyParatrooper on Mon Jul 01, 2013 at 03:38:30 PM PDT

        [ Parent ]

        •  As referenced, (0+ / 0-)

          Oh, so now the plan IS to go through all 50 states?

          Sorry, but I have a life.  And I also have references that say my view is the standard and yours is the exception.  References, plural.  

          Hey, wait a minute. That's EXACTLY what was said. Amazing
          Great job reading only half the instructions.  No, clearly you're right and the amendment to change the instructions is being added for the fun of it, rather than them wanting to change, you know, how the .jury is supposed to decide cases. Because that'd be too obvious!
          •  You're entering into the realm of insanity. (0+ / 0-)

            Let's look at the whole statement.

            If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

                However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

            In the first paragraph the threshold has already been established, if there's a reasonable doubt it was self-defense - not guilty.

            Now you argue that in the second paragraph, because he only said "convinced" of guilt, that it's implied to be less than beyond a reasonable doubt.

            How can the threshold simultaneously be innocent if there's a reasonable doubt it was self-defense, but at the same time guilty if they're persuaded to any level less than beyond a reasonable doubt? It's impossible.

            That's like saying, "if there's a 2% chance it was self-defense you must find the defendant not guilty, but if you're 51% convinced it was not self-defense you find him guilty.

            Please proceed, Governor.

            by USArmyParatrooper on Mon Jul 01, 2013 at 04:37:10 PM PDT

            [ Parent ]

        •  Aw, to heck with that, here you go. (0+ / 0-)

          Supreme Court: Walton v. Arizona: aggravating circumstances can be subjected to different guidelines than beyond a reasonable doubt.

          United States v. Urrego-Linares: The government bears the burden of proof on aggrevating factors that increase the sentence from a base case, the defendant on those which decrease it, with a preponderance view.

          Texas: Affirmative defenses are measured by a preponderance of evidence.

          New York: Same

          California: “Self-defense being an affirmative defense, it must, in a civil action, be established by the defendant by a preponderance of the evidence.”

          There's the feds and over a quarter of the US population.  Your turn, that should keep you busy for a bit.

          •  Whoops, wrong link for CA. (0+ / 0-)

            Meh, I'm too tired to look up the right one.  We'll call it three states so far, not four, and I'll check CA again later.  Your turn.

          •  Let's look at them. (0+ / 0-)

            It's possible Texas does NOT consider self-defense to be an affirmative defense, considering you're allowed to KILL someone for stealing your neighbor's property. I looked up the statute for self-defense in Texas, and it doesn't specify what level of persuasion is required.

            California.
            “Self-defense being an affirmative defense, it must, in a civil action, be established by the defendant by a preponderance of the evidence.” (Bartosh v. Banning

            In a civil action preponderance of evidence is the standard. That's not criminal.

            New York, same thing as Texas.
              2.  When  a defense declared by statute to be an "affirmative defense"
              is raised at a trial, the defendant has the burden of establishing  such
              defense by a preponderance of the evidence.

            Which New York statute specifies self-defense as an affirmative defense? It may be, as I said, states differ.

            Please proceed, Governor.

            by USArmyParatrooper on Mon Jul 01, 2013 at 05:25:33 PM PDT

            [ Parent ]

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