RESOLVED, the Criminal Code of the State of Kent is amended as follows:
Would this be a good amendment to the Criminal Code of Kent? I think it would be.
First, most defenses are non-affirmative in nature (i.e., they are of the “I didn’t do it and you can’t prove that I did” variety), so this would only affect a fraction of prosecutions. Moreover, even then, most victims do survive and remain capable of testifying, so we whittle it down even further.
Maybe you think putting this law in place where other witnesses are available is overreach? But I don’t know a good way of distinguishing, in a legal code, full eyewitnesses from less-than-full eyewitnesses (i.e., “ear witnesses” or people who only saw part of the completion of the crime, etc.)
If you’ve seen any of my past posts, you know I clearly would be opposed to that. Why should a defendant be subjected to affirmatively prove his innocence on his bad luck that the victim died? I like the idea that in a free society the state must prove each element of a crime beyond a reasonable doubt. In a murder case it must prove that a defendant “unlawfully killed a person with malice aforethought” or however it’s worded. The prosecution should need to prove the unlawfully part.
Would you be okay with, say, a robbery verdict instruction if the victim didn’t testify that the defendant must prove with a preponderance that he didn’t do one of the elements of the crime?
Yes. I might have opposed this before, say, February of last year, but now I have seen the light. We start with the proposition that it’s a crime to kill someone. If you wish to show that your particular killing was legal, you bear the burden of showing why it was.
You omitted the most important part of Kimmy’s proposal: the reason the victim didn’t testify. A robbery victim choosing on their own not to testify is not the same as a homicide victim being unable to testify because you killed him.
But of course, my proposal still requires the prosecution to prove all the elements of the crime beyond reasonable doubt. Rebutting an affirmative defense is not an element of the crime. Affirmative defenses are so called, as I hope you know, because the defendant affirms that he completed all the elements of the crime, but has permissible reasons for having done so.
You can’t figure it out for yourself? If you are dead because because the defendant killed you, then yes. If you are brain damaged because the defendant maimed you, then yes. If you’re on vacation because the defendant… is accused of illegally giving you an all expenses paid trip to Hawaii?
As pursuant to FRE 804(a)(4) (“cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”). I amend my proposal to make clear that the other categories in FRE 804(a) are explicitly excluded (victim refuses to testify; victim testifies as to not remembering the subject matter, etc.).
I’m not so sure I agree. It might not be possible to prove one way or the other whether a particular killing was in self defense, even if it was factually so. I am very reluctant to agree with something that appears to make it easier for innocent men to go to jail, even if the cost is a more difficult case for prosecutors.
Kent? Is that a county, state or hypothetical province? Do lawyers use it as a hypothetical often?
This seems to me to be a baby step. I understand that certain jurisdictions require all self defense claims to be backed by a preponderance of the evidence. The OP only requires this if the defendant won’t testify. Do I properly characterize this as a baby step?
Does the OP run afoul of constitutional prohibitions on self-incrimination? Real question.
For completeness I’ll note my bias against the defendant-friendly self defense law that exists in many jurisdictions in the US. So my support for the OP is unsurprising.
But one key element of murder is that the killing be “unlawful.” Your proposal makes the defendant disprove an element of the crime by a preponderance.
Would you care to elaborate on your evolution of thought? Any killing might be legal or illegal. Isn’t under our constitution the burden on the state to prove beyond a reasonable doubt that this one particular killing was illegal before we put the defendant in jail?
Should this standard apply to police officers and state executioners as well?
Incidentally, Ohio has stricter standards than that proposed in the OP. I discussed them in my thread, Would Zimmerman have been convicted in a state without Stand Your Ground?. I linked to this March 2012 post by the conservative legal scholar Volokh: Allowing convictions unless the defendant proves self-defense by a preponderance of the evidence: This appears to be the old common-law rule: While a murder defendant’s identity, intentional action, and the like have to be proven by the prosecution beyond a reasonable doubt, the affirmative defense of self-defense has to be proven by the defense by a preponderance of the evidence. If the jury thinks that, say, there’s a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be convicted of murder (or manslaughter, if that’s what he’s charged with).
This approach was upheld as constitutional in Martin v. Ohio (1987), but is now the law in only one state, Ohio. In all other states, once the defense introduces some evidence of self-defense, the prosecution must rebut that with proof beyond a reasonable doubt. I advocate the common law approach, which goes further than the OP, provided it is also the law in other democracies. If Canada and the UK have abandoned it though, I would assume they have reasons which are worthy of review and would retract my advocacy pending better information. I think that’s reasonable (and that reasonable people can disagree).
ETA: Another idea would be apply these rules to manslaughter, but not murder.
I agree that reasonable people can disagree, but the fact that 49/50 states have something apposite the OP is very telling. If yo are in a dark alley with an attacker and with no other witnesses around, it’s putting a really heavy burden on you to disprove/prove that you were in fear for your life. Likewise my rule would make it easier to lie since nobody living can prove otherwise.
But we have always erred on the side of keeping an innocent person out of jail even if that means that guilty men walk free. I want to keep it that way.
Well, “unlawful” can’t really be an element of the crime because we look to the elements precisely to determine what is unlawful. Just as we couldn’t condense our entire criminal code to “It is forbidden to do anything illegal.” Well, of course, that is so. But it is the role of the criminal code to tell us, without reference to the illegality it is meant to define, what is prohibited.
Or to look it at another way. Say you were applying for a job, and you asked, quite reasonably, “So, what is the job description for this position.” And the employer responded, “The person holding this position is responsible for executing the job duties associated with the position.” This is tautologically true and quite without any useful informational content.
So, the elements of murder are (1) the actus reus, causing the death of another, together with (2) the mens rea, malice aforethought (which consists of any of the following: (a) knowingly or intentionally causing the death of another, (b) knowingly or intentionally inflicting serious bodily harm that causes the death of another, (c) extreme recklessness that leads to the death of another [not in all states], or (d) the death of another caused during the commission of a felony."
Notice that none of these make any reference to any “unlawful killing.”
On a second, and perhaps more fundamental point, I’m not sure it’s very convincing to argue against a change in the law on the basis that the law does not now incorporate that change. Well, I know this. That’s why I am calling for a change in the law, on the basis that one who kills another and admits that he has satisfied all the elements of the crime, but has good reasons for doing so, the burden of proving those good reasons should fall on the person who asserts he had good reasons for committing otherwise ordinarily illegal acts.
More or less. It’s not as well-known as Blackacre. The State of Kent seems to be particularly popular at Columbia Law School and, perhaps not surprisingly, Kent Law School (at IIT Chicago).
My own preference is portmanteaux of two non-adjacent states, like Connectisconsin or Vermontorado.
Vermontahoma might work. Kent is a county east of London IIRC, which is what confused me.
jtgain: With SYG, it’s my impression that the guidelines for self defense have changed in the past 30 years or so. So appeals to tradition (which I don’t dismiss as a general proposition) have less force pending some historical review.
Another concern I have extends beyond the risk that false claims of self-defense might be used as a cover for murder. I worry that insufficiently difficult hurdles to the self-defense plea might discourage due diligence: it’s generally best to de-escallate situations rather than “Meet force with force.” But oh yes we are discussing tradeoffs in this context.
The Economist magazine reported some interesting results (sub only): One study has found that the sort of crimes that “stand your ground” laws are intended to deter, such as robbery, burglary and assault, have not fallen in the states that have adopted them, whereas homicide and manslaughter rates have risen. Florida’s law, a study by a local paper concluded, has been applied inconsistently and in odd ways: to exonerate gang members involved in a deadly shoot-out with an AK-47, for example. The success rate of those who invoke the law is greater if the victim is black than if he is white. Meanwhile, several people who have fired warning shots, rather than shooting to kill, have received 20-year prison terms, as a result of Florida’s fierce sentencing rules. US law and precedent has evolved in the direction of permitting greater use of the self defense plea. Methinks they went too far and these new legal developments should be revisited.