This was part of a hypothetical discussion I was involved in some years ago, in which the defendant was (in the hypothetical) accused of a crime the public held to be particularly heinous – in this case, child molestation – and the defense put on a case for acquittal rather than praying for dismissal, in order to clear the defendant’s name before the ‘court of public opinion.’ Someone also asked about whether jeopardy would attach in a dismissal. Any comments from real practicing lawyers on this?
The state can appeal the dismissal of an indictment, but once the jury is empaneled and sworn a dismissal or directed verdict based on insufficient evidence to prove the offense is an acquittal, such that retrial is barred by double jeopardy. See U.S. v. Martin Linen Co., 430 U.S. 564 (1977).
As stated in the OP, I haven’t even been presented with evidence that anyone is dead.
It doesn’t even get that far. Even more fundamentally than the elements of the offense, the state hasn’t shown that the court even has jurisdiction over the case. If the state fails to make a prima facie case in their case in chief that an offense occurred and that it is within the jurisdiction of the court, e.g., didn’t happen entirely in Canada if it even happened at all, the court grants the defense’s directed verdict without the defendant ever testifying and nothing even goes to the jury. If the hypo was tweaked so that the state put on a legally sufficient case in chief and the defendant made a bare bones assertion that he was acting in self defense on cross examination after the state rested it would raise some questions about what constitutes a sufficient claim of self defense, but as the hypo stands the state hasn’t even made a prima facie case that would invoke the court’s jurisdiction or survive a directed verdict.
That is incorrect. The position in England and Wales is identical to the Canadian law espoused byNorthern Piper above. For self defense defense the Accused bears an evidential burden to make the issue a live one at trial, and once this burden is satisfied only then does it go to the jury at all. See R v Lobell (1957) 1 QB 547, CCA. This is also the position under the statutory regime of Section 3 of the CLA 1967 and Section 76 CJIA 2008.
I suspect AK84 and isiahrobinson are actually in “furious agreement”. When isiahrobinson speaks of the defendant “raising” self defence, he is using shorthand by which he means discharging the evidential burden spoken of by AK84.
The two-second trial scenario of the OP is of course fanciful and full of procedural problems, but the thought behind it seems to be a question about onus of proof. The question of whether the defence has “raised” the defence sufficiently to have discharged th evidential burden is not trivial. Some articulations of the proposition in the past have required that the defendant raise evidence of each element of the defence. In the case of the subjective elements (about his state of fear and so on), this can have the practical consequence in many cases of forcing th defendant to give evidence which (depending on jurisdiction) can have adverse consequences on order of final addresses. The more prevalent view seems to be, however, that a defendant can rely on inferences to fill the gaps for the purpose of “raising” the defence.
Of course, the defendant, in “raising” the issue, can rely on evidence that has emerged in the prosecution case. It may be that in that way, he does not have to give evidence at all and still have the jury consider the issue.
A further example of difficulty arises where a defence of self-defence is not what the defence is relying on. Suppose the prosecution witnesses all say the defendant was punched first by the deceased, and then th defendant killed the deceased, in terms sufficient to otherwise raise self-defence. But what if the defendant says instead “it wasn’t me. You got the wrong guy. Whatever happened, it wasn’t me who is responsible.”
Defence counsel may think mistaken identity is more compelling than self defence, which might be weak, perhaps for reasons to do with proportionality of response. He might want his good arguments not to be diluted by bad ones. Is the court to direct the jury on self-defence even though the defence don’t want it?
The preponderant answer seems to be yes.
Of course all of this assumes the jurisdiction’s law is similar to that stated by AK84 and isiahrobinson. In many US jurisdictions, that is not the case. Where self-defence is an affirmative defence, these issues may not arise in this form.
So… assuming the OP case is a write-off, as soon as the prosecution rests the defence does not put the defendant on the stand and nothing is proven.
In a normal case - The prosecution shows - an altercation happens, someone is shot. There is no question the defendant pulled the trigger. The other fellow is unarmed.
What constitutes raising the defence of “self-defence”?
Presumably the defence lawyer arguing it is not enough. Real evidence has to be shown.
Is the statement to police when he was arrested enough? Would it be necessary for the defendant to take the stand and claim it was self-defence? Or would the defence lawyer asking the coroner, investigating officers, etc. “How does this evidence possibly eliminate the possibility of self defence”, “could this have been from defending himself”, etc. enough?
I assume the jury cannot in that case make any inference from the defendant not taking the stand to give his version, if the question is only raised against other evidence?
You’re right. pravnik’s comments are also right on the money, with one nitpick from me:
I’'d say that it would be malpractice to do that. In an instance where the prosecution so absolutely clearly as a matter of law failed to carry their burden, to fail to move for a dismissal on that basis at the close of their case in chief would be crazy. Even when it’s not a close question, you make that motion to protect your record; you cannot appeal for insufficiency of the evidence unless you made that motion and were denied.
The most legal finding a criminal fact-finder can return is “not guilty.” A defendant seeking to clear his name would be better off pursuing a writ of actual innocence, or whatever version of such might exist in his state, and not charging forward into a defense when there’s absolutely zero upside to it.
pravink nailed this. I write separately to add that if the case is a bench trial – no jury, and the judge serving as fact-finder – then jeopardy attaches the moment the judge begins hearing evidence, which makes this an interesting twist in our hypo, since the judge doesn’t hear any evidence from the prosecution at all.
In that case, in order to attach jeopardy to the proceedings, perhaps the defense should call a witness to testify to something utterly innocuous, and save its motion for insufficiency for the close of trial.
Raising self-defense can be done by the introduction of any evidence that would allow a reasonable jury to infer that the accused met the requirements for self-defense.
Typically, the accused must prove to the jury by preponderance of the evidence that the elements of self-defense were present, and then the burden shifts to the prosecution to disprove it beyond a reasonable doubt.
Florida’s law creates an extra wrinkle. It would seem to require a threshold determination of probable cause to believe that the force used by the accused was unlawful. This is not a determination for trial, because the law says that without that finding, the accused is immune from arrest or prosecution:
See the issue? Florida requires a specific probable cause finding that the force used was unlawful, as opposed to a general finding of probable cause to believe a crime was committed, and it specifically says that absent that, there is immunity from arrest or even detention in custody.
Slight nitpick of a nitpick: in my state you can raise insufficiency of the evidence for the first time on appeal without having first raised it in the trial court, but aside from that I totally agree it would be malpractice not to raise it and try for a directed verdict in the trial court when the state has completely failed to prove its case. I probably should have worded it “If the state puts on no evidence the defense can forego the motion and put on evidence if it wants to, provided the defense attorney has completely lost his damn mind.”
As others have hinted, it is a shifting burden sort of like a ping-pong match.
- Defendant can sit silently and wait for Prosecution to prove a crime. Prosecution, your move.
- Prosecution puts on evidence beyond a reasonable doubt that Defendant killed someone. Defendant, your move.
- Defendant makes a claim of self-defense. Not enough. He must must put on evidence that a self-defense claim is plausible. He does so. Prosecution, your move.
- Prosecution rebuts Defendant’s self-defense claim beyond a reasonable doubt.
Check and mate. You miss a step and the Defendant walks.
On reflection, under the terms of this bizarre hypo, that might be true in my state as well… but only because it’s so blatant an issue.
In Virginia, we have the dreaded Rule 5A:18, which says that no ruling of the trial court will be considered as a basis for reversal unless there was an objection to the ruling below, together with the grounds for same.
There is “ends of justice” exception, which basically allows a review when the error is clear, substantial, and material, and amounts to an obvious miscarriage of justice.
Which, arguably, convicting someone without a shred of prosecution evidence might be.
So are you saying that in Texas I can roll the dice on an insufficiency claim – hope for an acquittal but if it doesn’t come I still have my claim for appeal, without preserving it on the record? Do I need any kind of trial court motion to preserve it?
Motion for a new trial? Anything? I can truly just waltz into the appeals court and lay that out for the first time?
Cool.
It depends. He swears it was in self-defense, but did he shoot the deputy?
Nope, not even a MFNT unless the error the defense wants to complain of isn’t apparent from the record and they need to adduce additional evidence (although filing one gives the court reporter more time to file the record, so it’s a good idea to always file one to keep the court reporter happy). I guess the rationale is that insufficiency of the evidence claims succeed so rarely in Texas courts of appeals that there’s no harm in letting them get raised whenever. 
There will be variations, of course. In Canada, the accused does not necessarily have to call evidence himself. If there is already something in evidence from a Crown witness, the defence can rely on it to raise self-defence. So if all the Crown witness but one testified that the accused was the aggressor in the fight, but one Crown witness testifies that the accused was backing away and the deceased was the one who was threatening, the defence may be able to use that Crown evidence to put self-defence into play, forcing the Crown to disprove beyond a reasonable doubt.