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Reply #12


Response to demwing (Original post)

Sat Jun 29, 2013, 10:19 PM

12. Here's my understanding ...

Z has to produce evidence of self-defense (no burden of proof)

From FL case: "When self-defense is asserted, the defendant has the burden of producing enough evidence to establish a prima facie case demonstrating the justifiable use of force. Montijo v. State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011); Fields v. State, 988 So. 2d 1185, 1188 (Fla. 5th DCA 2008); see Murray v. State, 937 So. 2d 277, 282 (Fla. 4th DCA 2006) (holding that law does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant’s only burden is to offer facts from which his resort to force could have been reasonable). Once the defendant makes a prima facie showing of self- defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Fields, 988 So. 2d at 1188. The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, never shifts from the State to the defendant. Montijo, 61 So. 3d at 427; Fields, 988 So. 2d at 1188; see Monsansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) (explaining that defendant has burden to present sufficient evidence that he acted in self-defense in order to be entitled to jury instruction on issue, but presentation of such evidence does not change elements of offense at issue; rather, it merely requires state to present evidence that establishes beyond reasonable doubt that defendant did not act in self-defense); Murray, 937 So. 2d at 279 (explaining that defendant in trial for aggravated battery was not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force).

So, the prosecution has to prove beyond a reasonable doubt all the elements of the crime charged and that Z did not act in self-defense.

The FL statute on self-defense:
776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;...

I have not really been following the trial, but I assume this statute will apply:
776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter (justification of self-defense) is not available to a person who:
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

My understanding of FL case law on initial provocation is that the initial provocation must be done “by force or the threat of force.” For example, one case (Gibbs v State) ruled that "provoked" could not refer to mere words or conduct without force or threat of force.

Those who practice in FL may be able to add more to the legal standards that apply. I believe the jury instruction would be as follows: "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 guilty if all the elements of the charge have been proved."

Edited to add: I'm from another state, so had to check FL law on all this. Hopefully if there are any material mistakes a FL atty will chime in.

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Arrow 23 replies Author Time Post
demwing Jun 2013 OP
longship Jun 2013 #1
COLGATE4 Jun 2013 #2
longship Jun 2013 #3
dkf Jun 2013 #4
NaturalHigh Jun 2013 #6
demwing Jun 2013 #8
NaturalHigh Jun 2013 #9
DirkGently Jun 2013 #11
demwing Jun 2013 #15
demwing Jun 2013 #13
NaturalHigh Jun 2013 #14
ctaylors6 Jun 2013 #16
demwing Jun 2013 #18
COLGATE4 Jun 2013 #19
cherokeeprogressive Jun 2013 #21
COLGATE4 Jun 2013 #22
NaturalHigh Jun 2013 #5
demwing Jun 2013 #7
DirkGently Jun 2013 #10
demwing Jun 2013 #17
LineReply Here's my understanding ...
ctaylors6 Jun 2013 #12
dkf Jun 2013 #20
Caroline-Vivienne Jun 2013 #23
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