# A legal proposal **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2013, 10:52pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068 "2013-07-20T22:52:59Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [July 22, 2013, 5:36am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/21 "2013-07-22T05:36:15Z")
I thought the -acres were real property: when there’s one, Blackacre, the second is Whiteacre, and the third is Greenacre, which is the place for me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 22, 2013, 8:49am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/22 "2013-07-22T08:49:59Z")
> [@Measure\_for\_Measure](#): > > 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. Cite? ---
**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\ **Post date:** [July 22, 2013, 1:09pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/23 "2013-07-22T13:09:37Z")
> [@Bricker](#): > > Cite? Pretty sure **M for M** is referring to the [Marissa Alexander](http://en.wikipedia.org/wiki/Angela_Corey#Marissa_Alexander_case) case, **Bricker**. Don’t leave and then come back with your gun, is the teachable moment from that case, it seems. Also, most warning shots aren’t fired at [head-height](http://politic365.com/2012/05/15/angela-corey-speaks-on-marissa-alexander-case/), but w/e. > [@](#): > > “It was the photos and talking to the boys that convinced me. It’s not a warning shot when you fire and it comes in at about head level through the wall and only then goes up into the ceiling and into the living room,” Corey said. Then again, I’d have to check personally if Angela Corey said the sun rose in the east. Anyone able to link to any photos of the wall to prove or disprove Ms. Corey’s comments? The Alexander case is a good argument for scrapping mandatory minimums though. I like **Kimmy** ’s idea and I don’t see the problem with it. I’m also hazy about why the presence or absence of witnesses should matter. Wouldn’t additional witnesses make it easier for the defendant to prove his/her case? Also, wasn’t it the original English common-law rule that self-defense was an affirmative defense that had to be proven by the defendant by a preponderance of the evidence? All that said, does Zimmerman still walk if **Kimmy** ’s proposed rule was the law in Florida? I wouldn’t be surprised if he did. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 22, 2013, 2:36pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/24 "2013-07-22T14:36:08Z")
Isnt this a rehash of the ideas in the other SYG Zimmerman thread? Do you believe in the idea that it’s better for 10 guilty people to go free than one innocent to prison? This proposal would increase the amount of innocent people convicted and sent to prison so I’m curious what theoretical ratio you’d accept. The burden shifts to the accused for one element of the crime - mens rea. Either that or you could only charge with manslaughter and rely on the reckless aspect. And even then the accused still must prove their innocence rather than the state prove their guilt. That is a bad law with a bad result. This also destroys Castile doctrine. You would force people to flee into unknown danger from their homes and vehicles. Again, bad. This proposal invites second guessing in the safety of the courtroom what was done in the throes of imminent danger. The consequence means more chance of fatal hesitation and more chance of innocent people being g sent to prison or having their lives ruined through lengthy and expensive court costs both criminal and civil. Truly terrible. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 22, 2013, 2:44pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/25 "2013-07-22T14:44:40Z")
> [@Bricker](#): > > 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. I can’t tell if this is serious. You have previously said that to say that killing someone is a crime is not how our laws work. There are specific elements to the crime that must be proven beyond a reasonable doubt and the proposition that the elements being g reduced to a single element of killing someone turns that on its head. How about we start with the proposition that people who legitimately defend themselves against potential death should not be sent to prison or be financially ruined. ---
**Author:** ![Blaster\_Master](https://avatars.discourse-cdn.com/v4/letter/b/cab0a1/32.png) [@Blaster\_Master](https://boards.straightdope.com/u/Blaster_Master)\ **Post date:** [July 22, 2013, 6:05pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/26 "2013-07-22T18:05:04Z")
I understand the notion behind this and I think the motivation is admirable, but I think the potential consequences outweigh the potential benefits. It is a long standing notion that it is better to let ten guily men go free than to imprison an innocent person. This is a notion that is clearly written into aspects of our constitution, legal system, and culture, and it is a notion that I tend to agree with. To me, the idea of a preponderence of evidence as a requirement for self-defense in the case of deadly force seems to fly against that notion. That said, other than the rare cases like the Zimmerman trial, I don’t think it’s going to be muddy very often. If someone is getting mugged, their home is invaded or whatever, it seems to me that generally anyone in those situations is at some level of danger and that ought to be enough to avoid even bringing charges against them in the first place. Why not just leave it at the discretion of the state to determine if they have enough evidence to say that someone wasn’t in fear of their life. Really, the prosecution is supposed to have to show beyond a reasonable doubt anyway, so any grey area between that and the inability of the defense to get a preponderence of evidence ought to err on the side of the accused else we’ve essentially lowered the burden of proof for the prosecution in these cases. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 22, 2013, 6:13pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/27 "2013-07-22T18:13:34Z")
> [@Bone](#): > > I can’t tell if this is serious. You have previously said that to say that killing someone is a crime is not how our laws work. There are specific elements to the crime that must be proven beyond a reasonable doubt and the proposition that the elements being g reduced to a single element of killing someone turns that on its head. > > How about we start with the proposition that people who legitimately defend themselves against potential death should not be sent to prison or be financially ruined. It’s perfectly serious. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 22, 2013, 6:58pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/28 "2013-07-22T18:58:09Z")
Then would you care to address the points in post #24? ---
**Author:** ![Measure\_for\_Measure](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/measure_for_measure/32/557_2.png) [@Measure\_for\_Measure](https://boards.straightdope.com/u/Measure_for_Measure)\ **Post date:** [July 22, 2013, 7:12pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/29 "2013-07-22T19:12:46Z")
> [@Bricker](#): > > Cite? That was a direct quote from The Economist (sub only AFAIK) [Trayvon’s legacy](http://www.economist.com/news/united-states/21581998-when-it-legal-shoot-unarmed-black-teenager-trayvons-legacy) Like Gray Ghost, I assume it refers to the Marissa Alexander case. I’ll note that nobody was killed in her case: with a living witness it would be harder for the prosecution to disprove self defense beyond a reasonable doubt. So she got 20 years. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 22, 2013, 8:38pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/30 "2013-07-22T20:38:09Z")
> [@Bone](#): > > Isnt this a rehash of the ideas in the other SYG Zimmerman thread? > > Do you believe in the idea that it’s better for 10 guilty people to go free than one innocent to prison? This proposal would increase the amount of innocent people convicted and sent to prison so I’m curious what theoretical ratio you’d accept. I don’t believe we should create public policy by trying to aim for some ratio of guilty-to-innocent acquittals. Instead, we should craft our law to what seems reasonable in each circumstance. > [@](#): > > The burden shifts to the accused for one element of the crime - mens rea. Either that or you could only charge with manslaughter and rely on the reckless aspect. And even then the accused still must prove their innocence rather than the state prove their guilt. That is a bad law with a bad result. The accused has to prove they had a privilege to kill. That’s not “their innocence.” We start with a presumption that killing is a bad thing. The state must prove the killing beyond a reasonable doubt. The burden remains where it belongs. > [@](#): > > This also destroys Castile doctrine. You would force people to flee into unknown danger from their homes and vehicles. Again, bad. I’d be open to retaining the presumption that, in your own home, you can be presumed to reasonably feel fear of death or serious bodily injury from a trespasser. > [@](#): > > This proposal invites second guessing in the safety of the courtroom what was done in the throes of imminent danger. The consequence means more chance of fatal hesitation and more chance of innocent people being g sent to prison or having their lives ruined through lengthy and expensive court costs both criminal and civil. Truly terrible. I don’t agree. While it does invite a certain degree of second-guessing, it also places the emphasis squarely on the preservation of life instead of on the right to occupy a certain square of grass. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 22, 2013, 8:39pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/31 "2013-07-22T20:39:35Z")
> [@](#): > > 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. > [@Measure\_for\_Measure](#): > > That was a direct quote from The Economist (sub only AFAIK) [Trayvon’s legacy](http://www.economist.com/news/united-states/21581998-when-it-legal-shoot-unarmed-black-teenager-trayvons-legacy) > > Like Gray Ghost, I assume it refers to the Marissa Alexander case. I’ll note that nobody was killed in her case: with a living witness it would be harder for the prosecution to disprove self defense beyond a reasonable doubt. So she got 20 years. The weight of the evidence in the Marissa Alexander case does not support the claim that a “warning shot” was involved. She shot to kill, and simply missed. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 22, 2013, 10:00pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/32 "2013-07-22T22:00:09Z")
> [@Bricker](#): > > I don’t agree. While it does invite a certain degree of second-guessing, it also places the emphasis squarely on the preservation of life instead of on the right to occupy a certain square of grass. It trivializes the issue to reduce it to one’s desire to stand on a piece of grass. It’s not about the unwillingness to flee in the face of danger – it’s about what if a person cannot flee, and who gets to make that decision. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [July 22, 2013, 10:29pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/33 "2013-07-22T22:29:14Z")
Two men in a locked room, both armed, one gunshot, one dead guy, nobody saw what happened. I would vote for a justice system which doesn’t convict. Otherwise the person who must defend himself in this situation is completely screwed. Of course, it also provides an “advantage” to someone who would attack in this situation, but I guess I just have a personal preference for protecting defenders over indicting attackers. Of course the vastly more common and realistic scenario won’t force us to make the choice, so in almost every case the law I prefer wouldn’t be problematic. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 23, 2013, 4:01am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/34 "2013-07-23T04:01:04Z")
> [@Frylock](#): > > Two men in a locked room, both armed, one gunshot, one dead guy, nobody saw what happened. I would vote for a justice system which doesn’t convict. Otherwise the person who must defend himself in this situation is completely screwed. Why wouldn’t his uncontradicted testimony supply proof by preponderance? (My rule doesn’t bring back any victims from the dead, and it doesn’t bar the defendant’s constitutional right to testify. In fact, it is meant precisely to address this stacking of the deck by adding a measure of balance.) Unless there were some circumstantial facts that tended to defeat preponderance … Such as it was the victim’s house and so far as anybody knew, the victim and the shooter never had met before, and the house shows evidence of forced entry. The main difference that my proposal makes is: When the victim is unable to do testify, due to the actions committed by the defendant (he is availing himself of an affirmative defense), he must prove he had good reasons, rather than merely raise the possibility of good reasons and challenge the prosecution to prove that wrong (beyond reasonable doubt). We do say that we prefer to let X guilty people go free, rather than suffer one innocent jailed. (A rule more honored in the breach than the observance; I can point to any number of criminal procedure decisions that invert this rule). But more fundamentally, we expect our criminal justice system to punish crime in order to deter future crime and to avenge completed ones. Where a person acknowledges that, unless he had a good reason, he has committed a crime (this is what affirmative defenses are, after all), I see no problem in laying the onus of proving the existence of those good reasons at his feet. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 23, 2013, 4:12am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/35 "2013-07-23T04:12:31Z")
> [@Kimmy\_Gibbler](#): > > We do say that we prefer to let X guilty people go free, rather than suffer one innocent jailed. (A rule more honored in the breach than the observance; I can point to any number of criminal procedure decisions that invert this rule). There will be a spectrum of circumstances of legitimate self defense. Some will be able to demonstrate the affirmative defense and satisfy beyond a reasonable doubt. Others will be able to satisfy the preponderance of the evidence. There will be those that could not meet either standard. Are you comfortable sending those people to prison - given they in fact engaged in legitimate self defense? ---
**Author:** ![Measure\_for\_Measure](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/measure_for_measure/32/557_2.png) [@Measure\_for\_Measure](https://boards.straightdope.com/u/Measure_for_Measure)\ **Post date:** [July 23, 2013, 4:25am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/36 "2013-07-23T04:25:49Z")
> [@Bricker](#): > > The weight of the evidence in the Marissa Alexander case does not support the claim that a “warning shot” was involved. She shot to kill, and simply missed. I’m honestly not familiar with the case, but will concede that for the purposes of argument. I like the Economist, but I think they muffed that one - at the very least they should have indicated that the claim they were making was contentious. And it may have been flat out wrong. > [@Kimmy\_Gibbler](#): > > But more fundamentally, we expect our criminal justice system to punish crime in order to deter future crime and to avenge completed ones. While revenge is listed in most theories of punishment, it has always been treated with contempt by every published author I’ve read. I place zero weight on it, but unlike those scholars I perceive it as a legitimate societal preference. > [@Measure\_for\_Measure](#): > > 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. … This bears emphasis. Defenders of SYG need to either concede or examine the contention that it has led to more homicide. I have a problem with that. You can talk all you want about hypotheticals and the world that you wish to live in (so can I) but methinks that the track record of a law should be central to the debate. **Dead men tell no tales: a mentality that should not be encouraged** As for reasonable doubt, if that exists about whether somebody has killed another, let 'em go. But the constitution is not a suicide pact. I have a real problem if somebody can instigate a fight, then shoot another person when things get too rough for him. ---
**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\ **Post date:** [July 23, 2013, 4:46am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/37 "2013-07-23T04:46:33Z")
**Kimmy** , maybe I’m misunderstanding, but your proposal has nothing to do with SYG, Castle Doctrine, or imposing any duty to retreat, right? It’s just a reshifting of the burden of proof back to what it used to be for an affirmative defense: the proponent must prove it by a preponderance of the evidence. If that’s true, I’m not sure why people are bringing up different laws like SYG, etc… I don’t support getting rid of the Castle Doctrine; I’m not sure about SYG, as it is in practice in Florida; and I’d like a reiteration that the duty to retreat only applied if the defendant could retreat _safely_. You can’t retreat safely if the opponent has a gun. Nor if s/he has a knife, and is within 21 feet of you. Nor if you’re infirm, or otherwise unable to retreat. I’m sympathetic to **Bone** ’s arguments, but other cases in Florida make me wonder if SYG is resulting in the defendant being given too much deference during the investigation and trial. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 23, 2013, 5:02am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/38 "2013-07-23T05:02:44Z")
> [@Bone](#): > > There will be a spectrum of circumstances of legitimate self defense. Some will be able to demonstrate the affirmative defense and satisfy beyond a reasonable doubt. Others will be able to satisfy the preponderance of the evidence. There will be those that could not meet either standard. Are you comfortable sending those people to prison - given they in fact engaged in legitimate self defense? And there are instances where people kill others, not actually in self-defense, but they know that their allegations cannot be disproven beyond reasonable doubt. Are you comfortable telling those victims’ loved ones that the victims’ deaths must go unpunished, because it is an injustice to ask the perps to prove their own allegations, which they contend permit the killings they’ve wrought, are more likely true than not? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [July 23, 2013, 5:07am UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/39 "2013-07-23T05:07:15Z")
I’m comfortable with the concept that guilty men must go free to ensure innocent men do not get imprisoned, executed, or otherwise financially ruined. Without a doubt or hesitation. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [July 23, 2013, 12:19pm UTC](https://boards.straightdope.com/t/a-legal-proposal/664068/40 "2013-07-23T12:19:23Z")
> [@Kimmy\_Gibbler](#): > > Why wouldn’t his uncontradicted testimony supply proof by preponderance? Quite possibly! I wasn’t specifically claiming your proposed law wouldn’t have the consequence I mentioned–I was just saying generally what one of my desiderata would be. (To be honest, though I know preponderance of the evidence isn’t really a hard notion, my mental state at the time of posting was such as to lead me to kind of skip over the subtopics discussed in the thread and just compose a post communicating an overarching theme…) > [@](#): > > The main difference that my proposal makes is: When the victim is unable to do testify, due to the actions committed by the defendant (he is availing himself of an affirmative defense), he must prove he had good reasons, Where “prove” includes the kind of “proof by preponderance” mentioned above, which the man on the street might find dubious, right? That’d be fine with me. > [@](#): > > We do say that we prefer to let X guilty people go free, rather than suffer one innocent jailed. (A rule more honored in the breach than the observance; I can point to any number of criminal procedure decisions that invert this rule). That there are a number of criminal procedure decisions that invert this rule does not mean I do not prefer acquitting defenders over condemning attackers. (BTW is there a single word that is the opposite of “acquit?”) [Previous page](https://boards.straightdope.com/t/a-legal-proposal/664068.md?page=1) [Next page](https://boards.straightdope.com/t/a-legal-proposal/664068.md?page=3)