# Controversial encounters between law-enforcement and civilians - the omnibus thread **URL:** \ **Category:** The BBQ Pit\ **Created:** [October 10, 2014, 7:35am UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942 "2014-10-10T07:35:51Z")\ **Posts on this page:** 20\ **Page:** 287
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:37pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5721 "2015-08-01T15:37:18Z")
> [@xenophon41](#): > > I think it’s an utter, almost adolescent fantasy to believe that any agents of the court anywhere are _required to believe_ any individual’s proffered version of events. This includes eye witnesses against the suspect/defendant or the suspect’s mother who swears he was having tea with her all night and couldn’t have been “rioting with those hooligans.” Of course they are not required to believe it. What they are required to do is understand that not believing a story isn’t evidence of anything at all, it is simply a lack of evidence. If X says he killed someone in self defence, and the jury disbelieve him, then the situation is that they don’t know whether or not it was self defence. They can’t convict simply based on not trusting him. They need actual evidence that proves it was not self defence (said evidence will probably be the same evidence that shows X was lying, but not necessarily). Proof of lying won’t suffice, though, it needs to be proof that the specific, opposite scenario happened. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 3:39pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5722 "2015-08-01T15:39:42Z")
> [@Steophan](#): > > Here’s the important quote - “On all of these requirements, the prosecutor is the one who bears the burden of proof. In other words, if the evidence could support a self-defense legal defense, the prosecutor must prove beyond a reasonable doubt that self-defense does not apply.” It’s a long page, the quote comes towards the end of the introduction to part 1. I’ve read this approximately seven hundred and twenty eight times now. I think I need to ask you to explain this to me like I’m five. How does the above imply that self-defense is not an affirmative defense under California law? It looks to me like it’s just laying out how self-defense _is_ an affirmative defense. If the prosecution can prove the underlying actions did occur, but the defense presents a self-defense legal defense, then the defense wins unless the prosecutor can also prove that self-defense doesn’t apply. That sounds to me like exactly what an affirmative defense is. “Yes, I did what you say, but I did it in self defense so it’s okay. Ball’s in your court prosecutor.” ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:41pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5723 "2015-08-01T15:41:06Z")
> [@xenophon41](#): > > In practice, I think that can be done without any direct, physical evidence. Because “reasonable doubt” can be overcome (or created) by a reasonable argument. And a reasonable argument might very well be made by a prosecutor citing a combination of strong circumstantial evidence against the defendant and a _lack_ of corroborative evidence from the defense. That may well be the case. Strong circumstantial evidence is still strong evidence - but it would need to be strong enough to prove guilt beyond reasonable doubt. It’s rare but not unknown for this to happen in general, so there’s no reason it couldn’t happen in a self defence case. The lack of corroborative evidence cannot be considered as evidence that it wasn’t self defence, though. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:48pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5724 "2015-08-01T15:48:39Z")
> [@Frylock](#): > > I’ve read this approximately seven hundred and twenty eight times now. > > I think I need to ask you to explain this to me like I’m five. How does the above imply that self-defense is not an affirmative defense under California law? It looks to me like it’s just laying out how self-defense _is_ an affirmative defense. If the prosecution can prove the underlying actions did occur, but the defense presents a self-defense legal defense, then the defense wins unless the prosecutor can also prove that self-defense doesn’t apply. > > That sounds to me like exactly what an affirmative defense is. “Yes, I did what you say, but I did it in self defense so it’s okay. Ball’s in your court prosecutor.” Because killing in self defence _is not a crime_. It’s not a case of “yes, I did this, but it’s OK because of whatever”, it’s a case of “no, I did not murder him, that’s it”. It’s a semantic difference, but an important one. Someone who kills in self defence has not “gotten away with” murder, they have committed no crime. Do you really not understand why this is an important distinction? As clearly as I can put it, self defence does not _allow_ murder. Killing in self defence is _not_ murder, and should not be treated as such. It’s a fairly recent change in the legal philosophy, and one that I fully support, given that it increases one’s right to life. Also, an affirmative defence traditionally was one that the defendant had to prove - such as insanity, or other mitigating circumstances. One doesn’t have a _right_ to kill when insane, we have decided that it’s immoral to punish someone who commits a crime when not in control of themselves. One _does_ have a right to kill in self defence. Do you get the difference? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 3:50pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5725 "2015-08-01T15:50:22Z")
> [@Steophan](#): > > Because killing in self defence _is not a crime_. It’s not a case of “yes, I did this, but it’s OK because of whatever”, it’s a case of “no, I did not murder him, that’s it”. It’s a semantic difference, but an important one. > > Someone who kills in self defence has not “gotten away with” murder, they have committed no crime. Do you really not understand why this is an important distinction? When I said “I did what you say,” I did not mean “I murdered him,” but rather, “I killed him.” ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:50pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5726 "2015-08-01T15:50:47Z")
From [Wikipedia](https://en.wikipedia.org/wiki/Affirmative_defense)- > [@](#): > > Burden of proof > > In an affirmative defense the burden of proof is generally on the defendant to prove his allegations either by the preponderance of the evidence or clear and convincing evidence. In this respect, affirmative defenses differ from ordinary defenses [claim of right, alibi, infancy, necessity, and (in some jurisdictions, e.g., New York) self-defense (which is an affirmative defense at common law)], which the prosecution has the burden of disproving beyond a reasonable doubt. This explicity distinguishes self defence (in some jurisdictions) from an affirmative defence, whilst mentioning that at common law it was one. This has changed in many places, and continues to change in more. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [August 1, 2015, 3:51pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5727 "2015-08-01T15:51:27Z")
> [@Steophan](#): > > They can’t convict simply based on not trusting him. They need actual evidence that proves it was not self defence (said evidence will probably be the same evidence that shows X was lying, but not necessarily). Proof of lying won’t suffice, though, it needs to be proof that the specific, opposite scenario happened. All you’re saying here is that the prosecutor needs to convince the jury of the prosecution’s narrative. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:52pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5728 "2015-08-01T15:52:51Z")
> [@Frylock](#): > > When I said “I did what you say,” I did not mean “I murdered him,” but rather, “I killed him.” Killing someone is not a crime. I’ve asked this repeatedly, in other threads if not this one, if anyone can come up with a crime, in any jurisdiction, where the only element is killing someone. No-one has, and I’m certain that’s because it doesn’t exist. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 3:54pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5729 "2015-08-01T15:54:12Z")
> [@Steophan](#): > > From [Wikipedia](https://en.wikipedia.org/wiki/Affirmative_defense)- > > This explicity distinguishes self defence (in some jurisdictions) from an affirmative defence, whilst mentioning that at common law it was one. This has changed in many places, and continues to change in more. Elsewhere you have stated that it’s true everywhere except Ohio. You’ve given references to a few states. What I was really wanting was a source for your information that it’s true everywhere except Ohio. Presumably you got that information by some means other than knowing the criminal code in every state in the US, right? ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:54pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5730 "2015-08-01T15:54:25Z")
> [@xenophon41](#): > > All you’re saying here is that the prosecutor needs to convince the jury of the prosecution’s narrative. Convince them to the extent that they could not reasonably believe any other narrative which doesn’t involve the defendant committing the crime. That’s pretty much a definition of “beyond reasonable doubt”. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 3:55pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5731 "2015-08-01T15:55:38Z")
> [@Steophan](#): > > Killing someone is not a crime. > > I’ve asked this repeatedly, in other threads if not this one, if anyone can come up with a crime, in any jurisdiction, where the only element is killing someone. No-one has, and I’m certain that’s because it doesn’t exist. Correct, killing someone is not a crime. I have no idea why you’re emphasizing this. What have I said that you think implies it might be otherwise? ---
**Author:** ![Son\_of\_a\_Rich](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/son_of_a_rich/32/5439_2.png) [@Son\_of\_a\_Rich](https://boards.straightdope.com/u/Son_of_a_Rich)\ **Post date:** [August 1, 2015, 3:56pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5732 "2015-08-01T15:56:22Z")
Question: did Sandra Bland sign the ticket prior to the cigarette incident? ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 3:58pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5733 "2015-08-01T15:58:13Z")
> [@Frylock](#): > > Elsewhere you have stated that it’s true everywhere except Ohio. You’ve given references to a few states. What I was really wanting was a source for your information that it’s true everywhere except Ohio. Presumably you got that information by some means other than knowing the criminal code in every state in the US, right? [Same cite I’ve repeatedly provided](http://legalinsurrection.com/2013/07/that-odd-duck-ohio-self-defense-as-an-affirmative-defense-kind-of/), and which lawyers who post here haven’t questioned. Have you actually read this thread and others on the subject, or made any attempt to educate yourself on the subject, or are you continuing to disagree from a position of ignorance? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 1, 2015, 3:58pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5734 "2015-08-01T15:58:13Z")
> [@Steophan](#): > > Because killing in self defence _is not a crime_. It’s not a case of “yes, I did this, but it’s OK because of whatever”, it’s a case of “no, I did not murder him, that’s it”. It’s a semantic difference, but an important one. > > Someone who kills in self defence has not “gotten away with” murder, they have committed no crime. Do you really not understand why this is an important distinction? > > As clearly as I can put it, self defence does not _allow_ murder. Killing in self defence is _not_ murder, and should not be treated as such. It’s a fairly recent change in the legal philosophy, and one that I fully support, given that it increases one’s right to life. > > Also, an affirmative defence traditionally was one that the defendant had to prove - such as insanity, or other mitigating circumstances. One doesn’t have a _right_ to kill when insane, we have decided that it’s immoral to punish someone who commits a crime when not in control of themselves. One _does_ have a right to kill in self defence. > > Do you get the difference? You’re stating the conclusion while being asked about the process. How do you _establish_ that a killing was in self-defense? Take the killer’s word for it? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 3:59pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5735 "2015-08-01T15:59:00Z")
> [@Steophan](#): > > Convince them to the extent that they could not reasonably believe any other narrative which doesn’t involve the defendant committing the crime. That’s pretty much a definition of “beyond reasonable doubt”. This goes to the point made above, that really what’s at issue between you guys is what constitutes reasonableness of doubt. If everything else in a case points to murder, and the defendant makes a self defense claim, where _it is not reasonable to believe_ that self defense claim, then probably the right verdict is guilty. In some of the cases under discussion about cops in this thread, people are saying that _it is not reasonable to believe_ what some of the cops are saying about what they perceived as a serious threat etc. Giving the defendant the benefit of the doubt does not imply believing even what it is not reasonable to believe just because the defendant said it. ---
**Author:** ![xenophon41](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xenophon41/32/253_2.png) [@xenophon41](https://boards.straightdope.com/u/xenophon41)\ **Post date:** [August 1, 2015, 3:59pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5736 "2015-08-01T15:59:33Z")
> [@Steophan](#): > > From [Wikipedia](https://en.wikipedia.org/wiki/Affirmative_defense)- > > This explicity distinguishes self defence (in some jurisdictions) from an affirmative defence, whilst mentioning that at common law it was one. This has changed in many places, and continues to change in more. This is why you have to be careful with Wiki articles. The burden of proof is on the prosecutor [in most places], but the defense has an _evidentiary_ burden; they have to submit some evidence (which, as you say, could be limited to the defendant’s assertion) that it was self-defense. And then it’s up to the prosecution to provide counterevidence or counterargument. Which might be trivially easy if the only evidence offered by the defense is the assertion. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 4:00pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5737 "2015-08-01T16:00:10Z")
> [@Steophan](#): > > [Same cite I’ve repeatedly provided](http://legalinsurrection.com/2013/07/that-odd-duck-ohio-self-defense-as-an-affirmative-defense-kind-of/), and which lawyers who post here haven’t questioned. Thanks. > [@](#): > > Have you actually read this thread and others on the subject, No, I have not read the entire thread > [@](#): > > or made any attempt to educate yourself on the subject, Quite a bit > [@](#): > > or are you continuing to disagree from a position of ignorance? I disagree? ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 4:03pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5738 "2015-08-01T16:03:35Z")
> [@Bryan\_Ekers](#): > > You’re stating the conclusion while being asked about the process. How do you _establish_ that a killing was in self-defense? Take the killer’s word for it? The exact situation in Florida, which was discussed at length regarding the Zimmerman trial, was that if there a scintilla of evidence that is was self defence - any amount no matter how small - the prosecution has to prove that it was not. So yes, a claim by the defendant that it was would suffice. Apart from that, what do you mean by “establish”? There’s no requirement to prove (to any standard) that it was self defence (except in Ohio, as I’ve just cited again), the simple claim is enough. So I think the answer to your question is yes, take the killer’s word for it, but some jurisdictions may have different rules. It certainly _should_ be all that is necessary, else you are again expecting people to prove their innocence. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 1, 2015, 4:07pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5739 "2015-08-01T16:07:39Z")
> [@Frylock](#): > > This goes to the point made above, that really what’s at issue between you guys is what constitutes reasonableness of doubt. > > If everything else in a case points to murder, and the defendant makes a self defense claim, where _it is not reasonable to believe_ that self defense claim, then probably the right verdict is guilty. > > In some of the cases under discussion about cops in this thread, people are saying that _it is not reasonable to believe_ what some of the cops are saying about what they perceived as a serious threat etc. Giving the defendant the benefit of the doubt does not imply believing even what it is not reasonable to believe just because the defendant said it. Lemme clarify that: I am talking about cases where _it is not reasonable to believe anything other than that_ the self defense claim is false. If a man shoots a stranger a thousand feet away with a sniper rifle, after careful preparation for a bout of sniping, having written in his journal beforehand “I’m going to kill a random stranger on such and such date” where that date is the date of the deed, and then in court says it was self defense, then it is not reasonable to believe anything other than that this self defense claim is false. ---
**Author:** ![Steophan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steophan/32/9595_2.png) [@Steophan](https://boards.straightdope.com/u/Steophan)\ **Post date:** [August 1, 2015, 4:10pm UTC](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942/5740 "2015-08-01T16:10:35Z")
> [@xenophon41](#): > > This is why you have to be careful with Wiki articles. > > The burden of proof is on the prosecutor [in most places], but the defense has an _evidentiary_ burden; they have to submit some evidence (which, as you say, could be limited to the defendant’s assertion) that it was self-defense. And then it’s up to the prosecution to provide counterevidence or counterargument. Which might be trivially easy if the only evidence offered by the defense is the assertion. If someone pleads not guilty to a crime, but offers no defence, it is not trivially easy to convict them, the prosecution still has to prove each element of the crime beyond reasonable doubt. It _may_ be that there’s evidence that makes it easy to prove it wasn’t self defence, but that will still need to be produced in court, and the prosecution will have to explain why no possibility except murder is reasonable. This is necessary to protect someone who is attacked in an abandoned place, and kills in self defence, but there’s no evidence who the aggressor was. In that case, with no evidence either way, the only moral thing to do is consider him innocent. Yes, this may let a lot of people get away with murder. So what? [Previous page](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942.md?page=286) [Next page](https://boards.straightdope.com/t/controversial-encounters-between-law-enforcement-and-civilians-the-omnibus-thread/700942.md?page=288)