Reply #27

hat is a fundamental moral law in our society.

That is the starting point.

Self-defense is by its very name, a defense.

As I understand it, in general, and I am not talking about any specific situation, self-defense generally and most often applies to a defendant who killed another in the reasonable belief that he was facing an imminent danger of death or serious bodily harm to himself or others.

If you place the burden of proof on the prosecutor to show that a murder was self-defense, you cause several problems.

First, the prosecutor, in some if not all cases will face a conflict -- a sort of conflict of interest. Why? Let's say that, based on the facts, the prosecutor is presenting a case that the murder was second degree. Let's also say that, in order to do that in the state in question, the prosecutor has to present the evidence so as to prove the elements of second degree murder. Let's say that one of the primary elements is intent. The prosecutor would, in order to prove second-degree murder, have to show evidence proving beyond reasonable doubt that defendant intended the murder, and on the other, show evidence that the victim really the victim caused the murder. If the victim caused the murder, why isn't the charge less than second-degree murder in the first place?

I think that a lot of defendants would be poorly served by having the prosecutor present the case against the defendant and then turn around and have the task of proving that the defendant intended to kill but had to do it. If the prosecutor really believes that the murder was second degree and not manslaughter or maybe no charge at all, it just would not work.

Think of the worst case scenario. A defendant is facing a first degree murder charge and the prosecutor is alleging not just intent but also, let's say malice aforethought. Depends on the state law. How in the world is the jury going to trust a prosecutor who argues first degree murder and presents a case with evidence supporting the charge and then turns around and contradicts that case for first-degree murder with a case for self-defense.

In my opinion, that would utterly confuse the jury.

If somebody is dead, we presume that unless the evidence is very clear to the contrary, the killer committed a crime. It's better to require the prosecutor to first prove that the accused actually committed the crime, and only then allow the defendant to show that the crime was self-defense. This is time-tested. We don't want a lot of murderers running around loose who got off on self-defense arguments or because the prosecutor's case was confused.

Yes, the Stand Your Ground laws will increase the numbers of murders because, in my opinion, the kinds of people who commit malicious, intentional murders, the types of personalities that do that sort of thing, will soon figure out how to manipulate these laws. Criminals are very often manipulative. Sorry to have to disillusion you about that, but many (note I am not saying all) of them are.

Oh, and "Duty to Retreat"? That is not what I learned to call it. It is called kill only in self-defense or when justified for some legally recognized reason. "Duty to Retreat" is a misleading moniker. If someone decided to shoot your son or daughter, wouldn't you want them to have to prove that it was done in self-defense? Most people would.