IZZY said:
...if someone has little money for cost recovery, it is likely they have little assets in order to sue, unless it's small claims court.....
Not true at all. Penurious tort plaintiffs are ubiquitous. There are hordes of lawyers who specialize in representing plaintiffs on a
contingent fee basis in tort litigation, advancing costs and getting paid only if the plaintiff recovers.
IZZY said:
...Florida is one example of how a state law ( jurisdiction) can effect how we pontificate on the legal aspects of self Defense.....
Well, first, the word is "affect", not "effect."
But folks like OldMarksman, Spats McGee, Bartholomew Roberts and others who post here don't pontificate on self defense law. They have studied the subject extensively and have appropriate education and experience in the legal world. They can provide solid and useful information for those who are serious about improving their understanding of the subject.
There is actually less difference among the large majority of States than one might think. Most have done away with, one way or another, the duty to retreat, although a few still recognize and enforce it. Most States also have some form of Castle Doctrine and recognize useful evidentiary presumptions when a person against whom force is used has forcibly and unlawfully broken into someone's home and the defender knows or has a reasonable belief that has happened. Indeed the language of most Castle Doctrine statutes is remarkably similar.
But a significant characteristic of self defense law, which most people don't appreciate, is the way a self defense plea turns the presumption of innocence on its head. When one claims self defense he effectively admits to committing acts which are the elements of a crime -- he intentionally committed acts of violence against another human.
Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers,
The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here:
Part 1;
Part 2;
Part 3; and
Part 4.
As Ms. Steele explains the unique character of a self defense case in Part 1:
...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 effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.
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....
This affects the evidentiary burdens of the parties. In court the parties have their respective burdens of (1)
production (producing evidence); (2)
proof; and (3)
persuasion:
- 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.
- So in some States a defendant has the burden of producing sufficient evidence to make a prima facie (on its face) case of self defense.
- In other States, such as New York, the defendant can more easliy get a self defense (justification) instruction, as a member who is a New York lawyer pointed out on THR a while ago (emphasis added):
Derry 1946 said:
"Under New York law, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to the defendant. See Magliato, 68 N.Y.2d at 29, 505 N.Y.S.2d 836, 496 N.E.2d 856; McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202; Padgett, 60 N.Y.2d at 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795 (even where an aspect of defendant's testimony was inconsistent with justification defense, justification should have been charged); People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 (1982); Torre, 42 N.Y.2d at 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759; People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 260 N.E.2d 527 (1970) (because jury may believe portions of both defense and prosecution evidence, justification should have been charged even when defendant claimed alibi); People v. Huntley, 87 A.D.2d 488, 452 N.Y.S.2d 952, 956 (Fourth Dep't 1982), aff'd, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257 (1983) (justification should have been charged where defendant testified, in conflict with other witnesses, that decedent had approached him with knife demanding money). In sum, if the record includes evidence which, viewed in the light most favorable to the defendant and drawing all reasonably permissible inferences in his favor, satisfies the essential elements of the defense of justification, the charge must be given."
- 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."
- In a few States, however, the defendant will have the burden of proving justification by a preponderance of the evidence.
- 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.
In most cases the substantive rules, i. e., when the use of force against another person may be justified, are roughly similar in all State. Texas law provides for the justification of a use of force is somewhat broader circumstances (but not a broad as some think). The differences are usually in the details and the procedures in court.
One particularly advantageous characteristic of Florida law is the availability of a preliminary, evidentiary hearing on justification. A finding of justification concludes the matter in the defendant's favor. If the finding is adverse, the defendant may still raise self defense at trial.
IZZY said:
...that leave maybe 13 states where you might be expected to retreat.
So again, where you are might affect this mental exercise. ....
Not so much.
As we often say, "You don't ask, 'Can I shoot?', you ask, 'Must I shoot to save innocent life?'" Avoidance will in general be the best course, if it can be done without harm to innocents, even if retreat isn't legally required.
