Zimmerman and the misplaced burden of proof.

[Vox Moi]

It wasn't the prosecutors, It wasn't the defense. It wasn't the jury.
It was that the burden of proof is misplaced in the law and it needs to be fixed.

1) Basically, Homicide is against the law.
If someone is charged with homicide then the burden of proof that the event happened and the defendant did it is rightfully with the prosecution.

2) The law recognizes that under special circumstances the defendant, even if guilty of the act, can be absolved of responsibility.
Maybe the defendant pleads insanity. The burden of proof of insanity on on the defendant. Otherwise the defendant can put the prosecution in the almost impossible position of proving that the defendant was not insane at the time of the incident.

If the defendant pleads self-defense, the same standard should apply. The defendant should, especially when witnesses are inconclusive be required to explain his actions, under oath and subject to cross-examination. This is not testifying against against himself; he has already confessed to the act. This is making an appeal for absolution in what is otherwise a punishable offense. It is the defendant's assertion that should be proved beyond a reasonable doubt.

Zimmerman did not testify. He stood on a misplaced burden of proof: defying the prosecution to prove the negative: that he was not afraid for his life at the time. More than that, the assumption of innocence that Zimmerman enjoyed is at the same time a presumption of guilt on Martin. Zimmerman's indictment of Martin for felony assault is presumed to be true, if Zimmerman is presumed to be telling the truth.

This is what has to change: if you want to plead special circumstances, then the burden of proof should be on you.

[treestar]

1. Yes, this is likely what confused the jurors

a tie goes to the defendant, or less than a tie with "beyond a reasonable doubt." The jurors likely figured there was no proof what happened, so doubt goes to the defendant.

And the lack of forensic evidence. IMO it is the fault of the police who took Zimmerman's word that night and did not do a proper investigation. That left the prosecutors without evidence.

[Vox Moi]

4. What I was trying to say was that in making an appeal for self-defense ...

He is not actually defendant. He is, in effect making an application for special consideration.
He should be the one to justify that claim.
The assumption should be that no special case exists, not an assumption that it does.

[RBInMaine]

17. I hear you, but they can raise defenses via other witnesses they bring in their case.

Defendants can not be compelled to testify at their trials. Criminal defendants can raise defenses via other witnesses and through challenging the prosecution's evidence. Through the trial, via cross examination and the introduction of their own witnesses, the defense was trying to show that the facts in hand plausibly demonstrated that Zimmerman was acting in self defense. That was then the argument they made to the jury.

Remember too that the duty of the defense is merely to knock dents in the prosecution's case. They don't have to prove that the defendant is not guilty. They just have to blow enough holes in the state's evidence, if they can, to raise enough doubt of the defendant's guilt.

Any lawyer will tell you that defense is easier than prosecution because they just have to raise doubt. With self defense, if through challenging the state's evidence and their case they can demonstrate that the defendant reasonably felt enough of a threat and that the force he used could reasonably have been justified under the circumstances, then the jury can invoke the defense.

I think in the Zimmerman case this jury just could not decide who started the actual fight and therefore gave the defendant the benefit of the doubt as they thought it their duty to, believed per their instructions that he could therefore have felt enough of a threat under the circumstances, and therefore they invoked the self-defense argument and acquitted as they thought it their legal duty.

I wish the prosecution has gone with manslaughter from the start and pushed the "reckless behavior" narrative rather than the "hate-filled murderer" narrative. I bet the jury also just had a problem with that under this fact pattern. Manslaughter would have been a tough enough climb too, but they should have pushed that Zimmerman was "criminally negligent and reckless" which in my view he was. I think they would have had a better chance for a conviction if they had pushed that from the start.

[treestar]

22. criminally negligent - that would have been possible to prove

He ended up using deadly force to end a fist fight. Bad decision. He already had called the police and knew they were coming. People who really get jumped are in far worse shape than Zimmerman was that night.

[Travis_0004]

33. Even if he knew the police were comming, he didn't know how long it was going to take.

Police do not always have great response times on non emergency calls. It could have taken them 10 minutes to arrive.

[CreekDog]

42. what's with the spelling?

[RBInMaine]

41. Yup. Even criminally "reckless" given his long list of bad judgments and lies. Here's what happened:

The prosecution chose the wrong charge as their main charge and pushed the wrong narrative. It was just too much of a leap for the jury, even with his nasty profiling statements. Common sense works both ways, and it was just too much of a leap with Murder-2.

Here is how I think it all went down:

I do not believe Zimmerman went into the situation with an intent to kill the kid nor that he shot him out of pure "hate and ill will". I do, however, believe he pursued Trayvon out of a prejudicial attitude (the nasty profiling of Trayvon as an "asshole fucking punk&quot and a desire, as an odd and intense cop wannabe, to be a "hero" and capture Trayvon in the act of committing a crime. This guy is a bigtime cop wannabe with a long and odd history of constantly calling the police. He started the neighborhood watch because he wanted to add that to his resume. He was taking police related classes. He was taking mixed marshal arts. He had applied to be a cop. He's a cop wannabe in a big way. And he is also pretty darn paranoid. He has also had his own previous run ins with the law. He's an odd duck.

As a bigtime cop wannabe and wanting to be a "hero" who caught a "crook" that night, he therefore went against all good judgement and training as a neighborhood watch captain and grown adult, pursued Trayvon with a loaded gun, and confronted him with that "he's a punk and up to no good" ATTITUDE in his head. He was not professional nor polite to Trayvon when they made contact. He did not identify himself politely and just ask Trayvon if he "needed help" or whatever. Trayvon reasonably became creeped out and defensive. He moves toward Zimmerman asking, "Why are following me? What's your problem?" He may have even sworn at him. Zimmerman didn't de-escalate. They got into it verbally. Zimmerman probably fires back verbally and defensively, tells the kid he's not going anywhere, just asks "What are you doing here?" etc., to which Trayvon probably tells him it's not his business what he's doing here, etc. It is pretty clear from witness testimony there was a verbal confrontation that became physical. It erupts into a physical fight and they scuffle on the ground. Trayvon is on him. Zimmerman, really a coward and wimp with Trayvon getting the best of him, yells for help. He is able to get his gun out and shoots Trayvon killing him instantly. Then he starts thinking that maybe he didn't have enough cause to shoot him, and in his later statements lies to make Trayvon look like more of a threat than he really was, pushing his self defense story.

So what you have here is a grown man and weird cop wannabe who profiles the kid very nastily, goes against all good judgement as a watch captain and adult and pursues the kid, gets into a verbal altercation and doesn't de-escalate as a grown adult should, gets into a physical fight with the kid which he incited through his reckless judgement, and then uses deadly force to end a fistfight with a teenager who weighs 158 pounds. THAT is the narrative that the prosecutors should have pushed. That through horrendous criminal negligence and recklessness, this odd cop wannabe pursued a course of behavior resulting in the needless death of a just-turned 17 year old kid trying to walk home from a store with candy and a soft drink, and he must be held accountable. I think THAT would have been their best shot and may have changed the outcome.

[Yo_Mama]

2. Constitutionally no one can be forced to testify

So I don't think this can fly. Sorry. Fifth Amendment:
http://www.law.cornell.edu/constitution/fifth_amendment

[Vox Moi]

5. The fifth amendment goes to self-incrimination

But it is not self-incriminating to ask for special consideration. It is self-absolution.
Self-defense is not a crime. Making an argument for self-defense is not self-incriminating.

[Yo_Mama]

11. Forcing someone to testify to make that argument is unconstitutional

Do you think the SC would allow a law to stand that said anyone arrested for burglary was guilty unless that person took the stand? Shit no!

Because when you testify, you are doing so under penalty of perjury, it is unconstitutional to levy any judicial penalty against a person unless that person testifies.

This is old, settled case law. A person may be legally forced to testify as a witness to a crime perpetrated by another, but that is because the person will not be incriminating his- or herself by testifying. And if they will, the only way to compel the witness to testify is to give them immunity.

There may be a penalty with the jury for not testifying in such a case, but there can be no provision in law that disables a person's civil rights for not testifying.

[Blackford]

13. Then they are guilty of murder, end of discussion

Self Defense is an affirmative defense. If the standard is that the prosecution must prove a negative beyond a reasonable doubt, then nobody who is claiming self defense can ever be convicted.

That's the problem. You cannot prove that somebody did not fear for their life.

[Yo_Mama]

20. Right, but you cannot force someone to testify to that to make the argument.

It's the Constitution. End of Discussion.

You are confusing the necessity to make the argument of self-defense with the defendant personally getting on the stand and making it. The attorney can make it for him by eliciting evidence to that effect and making the argument to the jury. The defendant does not have to testify personally to raise that defense, and constitutionally, you can't pass a law saying that the defendant must.

[Blackford]

21. In most states it is required you testify to take an affirmative defense. n/t

[onenote]

26. Link?

Some, but not all, states require a defendant to prove certain defenses by a preponderance of the evidence. None insist that the defendant take the stand in order to make that case. Mandating that the witness testify would violate the Constitution.

[Blackford]

38. No link needed

In most states, iF you are making an affirmative defense that you were defending yourself, then refuse to testify, your affirmative defense fails on its face. You cannot claim self defense then not testify because in most states making that affirmative defense shifts part of the burden of proof to the defendant to provide a preponderance of evidence that the defendant did, indeed, fear for their life. IF the jury never hears the defendant say that they feared for their life, the defense does not meet its burden of proof.

In Florida, however, the standard is different. Once a defendant claims self defense the prosecution is under the burden of proof to prove the negative. The prosecution must proved that the defendant did not fear for their life. As we all know, proving a negative is impossible, thus in Florida if you murder somebody you get off scot free as there is no way the prosecution can prove you did not fear for your life.

Edited to add: This all goes out the window if the defendant is black.

[onenote]

40. I think you meant no link possible

The majority approach in the US is that the burden of proof where self-defense is claimed falls on the state and that the standard is "beyond a reasonable doubt."

In researching this issue back in 1999, the State of Connecticut's Office of Legislative Research cited the following statement from Corpus Juris Secundum.

"While accused may have the burden of going forward with evidence to raise the issue of self-defense, under the practice followed in most states, the burden of negating such defense is on the prosecution once self-defense is put in issue."

http://www.cga.ct.gov/ps99/rpt/olr/htm/99-r-0984.htm


Keep in mind that the trend in the ensuing years has been, if anything, for more states to adopt this approach. All the defense has in these states is a "burden of production" --the burden of putting forward a modicum of evidence that, when assumed to be truthful and viewed in the light most favorable to the defendant, would allow a jury to find self defense.

[qazplm]

34. what?

No it's not.

If I want to use the defense of alibi, all I have to do is put on some evidence of it, and that doesn't require me to testify.
Same for self-defense.

The prosecution messed up by putting in all of his statements in. They meant he didn't have to testify. Classic dumb prosecutor mistake.

They should have set it up with minimal witnesses to tell the story, then sat back and forced the defense to have to decide whether or not to have zimmerman testify. As it was, it was a no-brainer because his story was told through the government.

[Blackford]

39. Please see #38 n/t

[Hoyt]

3. I think jurors had reasonable doubt on who was on top, etc. But that was not the crime.

The crime was obvious. Zimmerman's defenders and supporters tried to keep it on irrelevant pieces of the crime.

[Avalux]

6. I agree with your post but take exception to requiring defendant to testify.

Can't require them to do so.

[Ruby the Liberal]

8. You are the only witness to a crime you committed

and it is up to the state to prove your "self defense" argument?

That doesn't seem a little fucked up to you?

[Avalux]

9. Yes it does, that's why the current law is flawed.

If the defendant chooses to not testify, it shouldn't be up the prosecution to read his mind. They can't prove a negative (that he wasn't in fear of his life). Especially with only circumstantial evidence.

[Ruby the Liberal]

10. Exactly.

And from what I was reading tonight, whether SYG (anywhere) or Castle Doctrine (only your house/domicile) - all states but Ohio currently put that burden of proving a negative on the state. Ohio is surprisingly the last holdout to require that of the defense.

This case has been VERY eye opening on a lot of fronts.

[Jim Lane]

23. I'd say shift the burden but don't require testimony.

Any compulsory testimony, even for an affirmative defense, raises Fifth Amendment issues.

A defendant who asserts self-defense should have the burden of proof on that issue. The defendant might choose to try to meet that burden without his or her own testimony. Most obviously, there might be a third person who saw the whole thing and testifies. Less persuasive would be circumstantial evidence -- medical testimony about defendant's gunshot wound, ballistics testimony linking the wound to the gun that was found in the victim's hand, etc. Or a defendant might choose to rely solely on post-incident photos, authenticated by the police photographer. If a defendant can prove self-defense without testifying, that should be an option. If the defendant decides not to testify and loses the gamble, because the jury decides that the defendant's burden of proof hasn't been met, too bad.

[Ruby the Liberal]

24. Agreed

I shouldn't have conflated the two. Having read the jury instructions - someone being "armed with a sidewalk" and "a sidewalk is a weapon" was apparently enough to cause doubt in the prosecution's 'prove a negative' case.

And then they gave him the murder weapon back.

[onenote]

27. It is up to the state to disprove your self defense argument.

not to prove it.

[cali]

32. not even a little bit. ever. what's fucked up to me is giving the state more power

in criminal trials. As if things aren't heavily stacked in favor of the state to begin with.

[Ruby the Liberal]

7. Not only was the burden on the state - he didn't even have to testify.

That is fucked up. If YOU claim self-defense then YOU should have the burden to prove it - ESPECIALLY if the only other witness is *DEAD*.

[Vincardog]

12. The burden was on the defense. The prosecution threw the case. IMO

Usually, the use of deadly force against an unarmed attacker is fatal to a claim of self defense. If you nevertheless wants to argue self defense you will have to convince the court that the unique circumstances warranted your use of deadly force despite the fact that the attacker was unarmed.

[Ruby the Liberal]

14. Was he tried in Ohio?

I’m a criminal defense lawyer in Wisconsin, but I’ll tell you my reaction to the Zimmerman verdict today. I’ve had friends in Florida asking for my take. I haven’t watched the trial very closely (it seems like an ordinary criminal case to me in many respects). But I was astounded that the defense would put on a “self-defense” argument without the defendant testifying. In most civilized jurisdictions, the burden is on the defense to prove, at least more likely than not, that the law breaking was done for reasons of self-defense. I couldn’t figure out how they could do this without the defendant’s testimony.

I got curious and read the jury instructions Friday night and, I was wrong. In Florida, if self-defense is even suggested, it’s the states obligation to prove it’s absence beyond a reasonable doubt(!). That’s crazy. But ‘not guilty’ was certainly a reasonable result in this case. As I told in friend in Tampa today though, if you’re ever in a heated argument with anyone, and you’re pretty sure there aren’t any witnesses, it’s always best to kill the other person. They can’t testify, you don’t have to testify, no one else has any idea what happened; how can the state ever prove beyond a doubt is wasn’t self-defense? Holy crap! What kind of system is that?

http://talkingpointsmemo.com/archives/2013/07/how_much_is_about_florida_law.php?ref=fpblg

Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states, once the defense introducing any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt.

This wasn’t always the rule. The English common law rule at the time of the Framing was that the defense must prove self-defense by a preponderance of the evidence, and Ohio still follows that rule; the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused is constitutional. But to my knowledge, only Ohio still takes the view — all the other states do not.

http://www.volokh.com/2013/07/14/burden-and-quantum-of-proof-on-self-defense/?utm_medium=twitter&utm_source=twitterfeed

[onenote]

28. what are you quoting?

I don't think that is Florida law.

[Vincardog]

43. It was a link someone posted to justify their opinion that poor widdle Z was as pure as the driven

snow. I think it is a RW site

http://legalinsurrection.com/2013/06/zimmerman-case-the-five-principles-of-the-law-of-self-defense/

[truebluegreen]

18. +1

[2naSalit]

15. I had little free time to browse the news today but

I do recall reading *somewhere* (perhaps Yahoo news) that the judge instructed the jury not to take into consideration anything prior to the actual physical confrontation... meaning the few seconds before TM was shot... in their deliberations. If thta is the case all I have to say is WTF!?!?!

So that would indicate that the jury was only to consider who was on top when the gun went off.

How is that justice? Or even justified? Honestly?

I have now lost any inclination to consider that there is any kind of equal justice in this country. There appears to be only a systemic attempt to enforce a system of feudalism where you do the bidding of your self-appointed "superior" overlords without complaint or get locked up or killed.

Like Chris Rock says... "Don't be female in Texas; Don't be black in Florida; Don't be poor in America."

I think humanity is taking its last gasp here and I wonder if people will awaken and take the demons by the horns and vanquish them.

[exboyfil]

30. It gets better

look up the Trevor Dooley case. Everyone in that case recognized both that James (a much larger man and veteran of Iraq) made the initial physical confrontation and had Dooley by the throat taking him to the ground when Dooley shot him. Dooley was charged after two days and convicted this year of manslaughter.

What could the difference be? It appears Zimmerman's best story (which he never had to testify to in court) was that Martin took the first physical action after being followed by Zimmerman at night. Martin a 17 year old who was 25 pounds less than Zimmerman at the time.

[Just Saying]

16. Yes we had this discussion before the verdict

And I agree with you.

It seems to me since we know he killed someone, if he's going to claim self-defense then while we presume him innocent he still must have some burden to make a case for his defense. Otherwise anyone who kills in absence of witnesses could make this claim and prosecutors are challenged to disprove whatever they come up with. It's ridiculous and probably why a racist, child killer got off.

On a side note, it's nice to see that for once my state got it right! Is Ohio really the only state to require a killer prove self-defense? Well that's just sad. (Thanks for the info Ruby the Liberal!)

[petronius]

19. I agree with you, and to be honest I had always thought that was how it

worked: on the one hand, you could deny you'd committed the act and the prosecution had the burden of proving you did. But on the other hand, if you admitted you had committed the otherwise-criminal act but you had a good reason, then the burden should fall on you to demonstrate that reason. I'm surprised that that isn't the case in general...

[cpwm17]

25. I'm inclined to agree with you

There's a loophole in the law, and with the power of the gun lobby, there's much potential for abuse.

[Turbineguy]

29. The shift in the burden of proof was done

to make gun sales go up.

[cali]

31. sorry, don't agree.

insanity under criminal law is a special circumstance. I don't agree that the same requirements should be part of a self defense plea, or that they even could be.

Your post horrifies the fuck out of me. I'm sure you'll have a lot of agreement.

I don't want to see the state have even more power and make it even harder for the defense. It's all heavily stacked toward the prosecution in the first place.

really shitty idea.

[spin]

35. I totally agree. We don't need to replace the current system which one in which ...

you are guilty until you prove yourself innocent.

[cali]

36. people are reacting to the Zimmerman verdict. stupidly. still, it scares me to see how reactionary

people are.

Yeah, let's hand the prosecution (state) more power. yeah, that's the ticket.

fuck.

[spin]

37. I blame our educational system. ..

I know when I went to high school many years ago in the 1960s we were taught about "innocent until proven guilty beyond a reasonable doubt." I'm not sure that happens today.