# Florida's Stand Your Ground law - good or bad law? Poorly understood? **URL:** \ **Category:** Great Debates\ **Created:** [March 22, 2012, 11:59pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560 "2012-03-22T23:59:54Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [March 23, 2012, 4:32pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/121 "2012-03-23T16:32:10Z")
> [@Martin\_Hyde](#): > > The guy grabbing your arm in that scenario was engaged in unlawful activity. > > Even in states without a stand your grand law, there are always things that must be weighed anytime a fight breaks out and one person kills another and claims self defense. > > Provocation is a legal concept that if I provoke you into assaulting me, that can diminish or even eliminate your legal culpability. > > How provocation intersects with the right to use self defense to protect yourself from great bodily harm is no simple issue. If I provoke you in the scenario above, and then immediately shoot you it’s possible I can successfully argue self defense. However under the letter of the law I think it is _most likely_ I would not be able to sustain my claims in that scenario. > > It’s a complicated issue, though. If I provoke you into attacking me, do you think that means at no point in the attack should I be able to _legally_ use self-defense? Even if I provoke someone, I don’t believe (opinion) that gives them the right to beat me to death. > > Instead, if I provoke someone I think it means there should be a higher bar for a self-defense claim. In many States if you have provoked a fight you can only legally use self defense if you fear grave bodily harm or death is imminent, and you have no means of escape. That’s often the official requirement for _any_ self defense, though. > [/SIZE][/FONT] Oh certainly a guy who you provoke doesn’t gain the right to kill you. But unless the altercation is on film, the guy who shot the victim doesn’t have to tell the police about his grabbing the other guy. I can certainly see a possibility that Martin was harassed by Zimmerman and may have laid hands on him to keep him from running away. At that point, a reasonable person might punch the dude holding him. If at that point it’s a brawl, I don’t think that the instigator should get free pass to use deadly force to stop a fight he started. If you start fights you’re going to get beat up once in awhile. A person shouldn’t start shooting as soon as he realizes he’s losing a fight he started. I can’t see where it’s reasonable to assume that Martin meant deadly harm. And certainly it warrants an investigation by police. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [March 23, 2012, 4:32pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/122 "2012-03-23T16:32:16Z")
> [@Martin\_Hyde](#): > > The guy grabbing your arm in that scenario was engaged in unlawful activity. How so? Since when is grabbing someone’s arm unlawful? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 4:35pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/123 "2012-03-23T16:35:26Z")
> [@Lobohan](#): > > Oh certainly a guy who you provoke doesn’t gain the right to kill you. But unless the altercation is on film, the guy who shot the victim doesn’t have to tell the police about his grabbing the other guy. > > I can certainly see a possibility that Martin was harassed by Zimmerman and may have laid hands on him to keep him from running away. At that point, a reasonable person might punch the dude holding him. If at that point it’s a brawl, I don’t think that the instigator should get free pass to use deadly force to stop a fight he started. > > If you start fights you’re going to get beat up once in awhile. A person shouldn’t start shooting as soon as he realizes he’s losing a fight he started. I can’t see where it’s reasonable to assume that Martin meant deadly harm. And certainly it warrants an investigation by police. In every crime, if the criminal lies about facts that would help convict him and there is no evidence of those facts that police can discover independently that will help the criminal avoid conviction. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [March 23, 2012, 4:36pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/124 "2012-03-23T16:36:05Z")
> [@Martin\_Hyde](#): > > If you want to get precise on legal terminology however, the requirement of a defendant to _produce_ their claim of self defense is referred to as the **burden of production** , if they assert self defense they have to produce an actual defense, they can’t just present no defense and hope that the prosecutor lacks evidence necessary for a conviction (at least not if they want to be acquitted.) However it is not properly considered a **burden of proof**. Yeah, you keep saying that, but do you have any evidence that’s the case in Florida? Here’s [an analysis of Georgia’s very similar law](http://www.wsbradio.com/news/news/state-regional-govt-politics/georgias-self-defense-law-similar-fla/nLYy8/): > [@](#): > > Georgia’s Self Defense Law, written in 2006, is similar to Florida’s, which was drafted the year before. According to WSB Legal Analyst Ron Carlson, the law says a person can use deadly force if they believe, “Such force is necessary to prevent death or great bodily injury to himself and there is no accompanying obligation to retreat when using that force.” > > **Carlson also says the burden of proof is on the person claiming self defense. “The jury has to find that the apprehension of the person who pulls the gun was reasonable.”** Carlson is a nationally-respected authority on evidence and trial practice. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [March 23, 2012, 4:38pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/125 "2012-03-23T16:38:50Z")
> [@msmith537](#): > > That’s because you apparently not reading the actual law and are simply taking the rambling opinions of various non-attorneys on the internet as legal precedent. > > The law allows you to > “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony” An honest question, then; what is the point of the law? I live in Canada. I certainly can kill someone in self defense if my life was threatened, or if another person’s life was threatened. s.34 of the Criminal Code clearly gives a person the right to use force, up to killing another, if they have a reasonable apprehension of “death or grievous bodily harm,” e.g. being assaulted. The test is merely “reasonable belief” that you have to defend yourself. So if SYG law just does that, why did they bother to pass it? I cannot imagine any jurisdiction in the world that descended from English common law that does not allow for the use of reasonable force in self defense. ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [March 23, 2012, 4:41pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/126 "2012-03-23T16:41:19Z")
> [@Blake](#): > > So even if all the physical evidence shows that an attack occurred and there is no reason at all to believe otherwise, and even if 10, 000 previous cases have all resulted in no conviction, the case still has to be taken to court, even though everybody believes that the judge will dismiss the case? :dubious: > [@Blake](#): > > In the real world 99% of people don’t want to kill anyone. > > Of the remainder, 99% want to kill people they know, so a self defence plea is kinda hard to swallow. Of the people who do kill people they know and try to plead self defence, almost none manage it because it is damn near impossible to manipulate someone into a physical position that will match your story of self defence. So which is it? Either these sorts of ambiguous cases are so rare that they don’t pose much of a threat to the integrity of our justice system as a whole, or they are so common that police can’t send them all even to the Grand Jury for fear of swamping the system. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 4:41pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/127 "2012-03-23T16:41:24Z")
> [@BobLibDem](#): > > How so? Since when is grabbing someone’s arm unlawful? Depending on jurisdiction it would typically fall under assault or battery statutes. I live in Virginia where we do not explicitly define assault and battery by statute, but just say: > [@](#): > > § 18.2-57. Assault and battery. > > A. Any person who commits a simple assault or assault and battery shall be guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement. That means it is defined by “common law.” A Virginia law firm [explains](http://virginiacriminallawyers.vatrafficlaw.com/pages/assault.html): > [@](#): > > The common law definition of an assault and battery is an intentional harmful or offensive contact. To get even more specific, an assault under common law is separate from a battery. An assault is the apprehension of a harmful or offensive contact. Thus, even if you did not actually make contact with the individual, if you intended to make contact, you could be found guilty of assault. A battery is the actual harmful or offensive contact. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [March 23, 2012, 4:50pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/128 "2012-03-23T16:50:57Z")
> [@BobLibDem](#): > > How so? Since when is grabbing someone’s arm unlawful? In Florida, for quite some time now. It is the crime of battery; Title XLVI, Chapter 784. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [March 23, 2012, 4:54pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/129 "2012-03-23T16:54:40Z")
> [@Spoke](#): > > Yeah, you keep saying that, but do you have any evidence that’s the case in Florida? Ah, here we go. I found it. Looks like you are right, **Martin Hyde** : > [@](#): > > When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense. See id.; Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010). The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction. [Montijo v. State of Florida](http://www.miami-criminal-lawyer.net/caselaw/2011/04/15/michael-v-montijo-appellant-v-state-of-florida-appellee/). It still seems to me it should be a jury question in the Martin case, not a matter for police discretion. There is plenty of evidence undercutting the self-defense claim. ---
**Author:** ![SmellMyWort](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SmellMyWort](https://boards.straightdope.com/u/SmellMyWort)\ **Post date:** [March 23, 2012, 5:03pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/130 "2012-03-23T17:03:19Z")
> [@Martin\_Hyde](#): > > In every crime, if the criminal lies about facts that would help convict him and there is no evidence of those facts that police can discover independently that will help the criminal avoid conviction. And that is precisely the problem with FL’s SYG law, at least how it appears to be being followed in the Martin example, based on what’s currently known about the case. It makes it even more easy for criminals to do exactly that. How is that a good thing? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 5:05pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/131 "2012-03-23T17:05:17Z")
> [@Spoke](#): > > Carlson is a nationally-respected authority on evidence and trial practice. He’s misusing the term burden of proof by my reckoning. And also by the reckoning of the Federal public defender’s office: > [@](#): > > **I. Legal Groundwork For Affirmative Defenses** > **A. What is an Affirmative Defense?** > An affirmative defense is one which provides a defense without negating an essential element of the crime charge. To establish an affirmative defense the defendant must place before the jury sufficient proof to generate a jury instruction on the particular defense theory sought. Normally, an affirmative defense is expressly designated as affirmative by statute, or is a defense involving an excuse or justification peculiarly within the knowledge of the accused. > > **B. How is an Affirmative Defense different from a “Regular” Defense?** > The presumption of innocence is legally all a defendant needs to be acquitted. The defense is reasonably free to argue the Government has failed to prove any essential element of the crime charge reasonable doubt (BRD) and jury may find a defendant not guilty. This tact does not require the defense to produce any evidence. The judge must instruct the jury on the government’s burden, presumption of innocence, unanimity and proof beyond a reasonable doubt. A defendant is entitled to a theory of defense instruction “as long as it is legally valid and there is sufficient evidence, viewed in the light most favorable to the defendant, to permit a reasonable juror to credit the defendant’s theory.” \*United States v. Josleyn, \*99 F.3d 1182, 1194 (1st Cir. 1996); \*United States v. Meade, \*110 F.3d 190, 201 (1st Cir. 1997); _U.S. v. Reed_, 991 F.2d 399, 400 (7th Cir. 1993). > > An affirmative defense is one which requires the actual production of evidence, be it testimonial or physical. The evidence can be adduced through cross examination of > Government witnesses or produced after the close of the Government’s case in chief. > Affirmative defenses do not directly attack an element of the crime but provide either justification for the conduct or some other legally recognized approach to undermining the charge. A defendant must generate an affirmative defense instruction. > > **C. Types of Defenses** > There are two categories of defense. > > 1. I did not do it defenses, and > 2. I did it but defenses. > > Affirmative defenses are available in both categories. > > **i. I Did Not Do It** > An alibi defense is an “I did not do it defense.” We could rest there, but with the addition of an alibi we go farther, we show we were elsewhere so \*\*could not \*\*have done it. The defense has affirmatively chosen to take on the burden of proving the defendant was elsewhere when the crime occurred. If we produce this evidence, then we are entitled to a special or additional jury instruction. “One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find the defendant not guilty.” Notice how the instruction focuses the jury. If they have a reasonable doubt on the defendant’s presence, they MUST find not guilty. If, however they find presence, the jury still must go on to look at each and every element of the offense. With an “I did not do it” affirmative defense, you concede nothing and you strengthen your not guilty position by giving the jury a specific reason. > > **ii. I Did It But** > > Many more affirmative defenses fall into the “I did it but” category. Insanity, entrapment, self defense, necessity, duress, are many of the statutory affirmative defenses. In these situations, there is a major strategic aspect to deciding on the defense. Assertion of the specific affirmative defense essentially concedes that the defendant was involved in the conduct alleged. While the government must still prove each element assertion of many affirmative defenses tells the jury the government is in fact correct as too much of the charge, BUT, there is a fact or facts which serve to exonerate the conduct. Self defense is an affirmative defense to assault, but by asserting self defense the defendant admits to the assault then gives a legal reason why guilt does not attach to the conduct. If the jury rejects the self defense argument, they are supposed to still find proof BRD of all the elements. > Once you have put on your self defense claim, do you think a jury will spend much time on deciding if assaultive conduct actually occurred? I don’t think so. In an I did it but case, the defense is generally hanging the whole case on the jury accepting the affirmative defense presented. Sure there are exceptions to every rule but realistically how may jurors will accept arguments in the alternative. I did not assault her, but if I did it was in self defense. I don’t think that works with a jury. Maybe in a bench trial but even federal judges are human. In deciding to present an I did it but affirmative defense review these issues with the client. I suggest you have a letter explaining the issues to them. > > **D. Burdens** > The term “affirmative defense” seems inextricably tied to arguments about burden shifting. Three different burdens exist; burden of proof (always on the government), burden of production (normally on the defense), and burden of persuasion (normally back on the government). The burden of proof to prove the essential elements of the crime charged BRD starts with and ALWAYS stays with the Government. The burden of production to generate an affirmative defense is on the defense. This is constitutional because the defense is not negating an essential element of the crime charged. The standard, meaning the quantum of evidence needed, varies with the particular affirmative defense. Generally it is either by a preponderance, or by clear and convincing. Once the defense has met this burden of producing an affirmative defense, the Government has the additional burden of persuading the jury not just as to each element of the crime BRD, but also to persuade the jury to reject the affirmative defense BRD as well. > > **I. Burden of Proof** > Presenting an affirmative defense offers no relief to the government in what they must prove. _Patterson v. New York_, 432 U.S. 197 (1977). Rather, if the defense generates an affirmative defense, **the government must then disprove the defense generally beyond a reasonable doubt**. _Mullaney, 421 U.S. at 704; U.S. v. Jackson_, 569 F.2d 1003, 1008 n.12 (7th Cir. 1978)(emphasis added). Affirmative defenses are the result of the common law merging with statutes and the modern rules of criminal procedure. At common law, the burden of defenses was generally on the defendant. This remained the case at the time the bill of rights was adopted. Fifth and fourteenth amendment jurisprudence have changed common law. It is now “black letter law” that the government has the burden to prove each and every element of the crime charged beyond a reasonable doubt. _Jackson v. Virginia_, 443 U.S. 307, 324 (1979); _In re Winship_, 397 U.S. 358, 364 (1970); _Davis v. U.S._, 160 U.S. 469 (1895). This burden never shifts to the defendant who maintains a presumption of innocence throughout the trial. _Wilbur v. Mullaney_, 496 F.2d 1303, 1307 (1st Cir. 1974), affirmed, 421 U.S. 684 (1975). Generally, if a crime is a specific intent crime, then the government must prove beyond a reasonable doubt that the defendant acted with an improper purpose. An affirmative defense which undermines intent provides a complete defense by undermining an essential element of the charge by the government beyond a reasonable doubt. \*In re Winship \*397 U.S. 358 (1970). It is an unconstitutional shift of the burden if a defendant must prove his innocence by negating an element of the statute. _Mullaney v. Wilbur_, 421 U.S. 684, 702 (1975). > > There remains a distinction between the burden of pleading and burden of proof. If a defense is labeled an “Affirmative Defense” then the government need not plead it, as it is not an element of the offense. It has long been established that “the burden of proof is never upon the accused to establish his innocense, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime.” _Davis v. United States_, 160 U.S. 469, 487 (1895). The defendant does have the option, under some circumstances, to introduce evidence to show “affirmatively that he was not criminally responsible for his acts.” \*Davis \*at 478. > > **ii. Burden of Production** > The level of evidence required to generate an affirmative defense, often called the “burden of production” varies with the defense. For some defenses it is by a “preponderance,” (entrapment, _Jacobson v. U.S._, 112 S.Ct. 1535 (1992) while other defenses require “clear and convincing evidence” (normally a statutory requirement, such as insanity, 18 U.S.C. § 17(b)). The First Circuit has suggested, although not made a definitive finding, that the court needs to examine both the particular crime and the particular defense at issue in assigning the burden of proof. The court indicates there may be a difference in those cases which require a \*mens rea \*when compared to those that are general intent. _U.S. v. Diaz_, 285 F.3d 92, 96-97 (1st Cir. 2002). > > **iii. Statutes may set burden of production** > The legislature may establish the specific elements of a crime and may also, if it chooses, create specific affirmative defenses. As to those established affirmative defenses the legislature may by statute require a criminal defendant to bear the burden of establishing that defense. _Martin v. Ohio_, 480 U.S. 228, 233, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987); \*Patterson, \*432 U.S. at 210. The Supreme Court has upheld legislative creation of the burden of production against constitutional challenges, reasoning that the federal Constitution requires that the government bear the burden only as to the elements of the charged crime and that the legislature’s definition of the elements of a criminal offense usually is dispositive. _Martin_, 480 U.S. at 232-33; _McMillan v. Pennsylvania_, 477 U.S. 79, 85 (1986). As one court observed, “Congress, however, routinely creates exceptions to criminal liability for various offenses. Most of these exceptions do not contain language indicating that they are affirmative defenses rather than elements of the offense. Nevertheless, the courts generally interpret them as affirmative defenses.” _United States v. Kloess_, 251 F.3d 941, 945 (11th Cir. 2001), (finding the safe harbor of 18 U.S.C. § 1515 (c), and affirmative defense to an obstruction charge.) > > 1 For an excellent analysis of the major affirmative defenses see _Defending A Federal Criminal Case_, 2001 Ed., Federal Defenders of San Diego, Chapter 11, Affirmative Defenses in Federal Court, updated by Tony Cheng and Suzanne Lachelier. Credit is given to them for much of this section of my article. A second excellent source on affirmative defenses is the _Pike and Fischer BNA Criminal Practice Manual_, Vol. 2, section 61, Defenses. Both sources provide extensive bibliographies to assist in focusing on a specific defense. > > **iv. Burden of Persuasion** > At common law, the defendant bore the burden of pleading and proving all affirmative defenses. This allocation of the burden was found constitutional in _Patterson v. New York_, 432 U.S. 197, 202 (1997). The \*Patterson \*court recognized the trend toward requiring the government to bear the burden of persuasion on some affirmative defenses. _Patterson_, note 10. Any defense which tends to negate an element of the crime charged, sufficiently raised by the defendant, **must be disproved by the government**. _Patterson_, 206-207 (emphasis added). “The due process clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the defense makes a substantial difference in punishment and stigma. The requirement of course applies \*a fortiori \*if the defense makes the difference between guilt and innocence.” \*Patterson \*at 226. > > If the defendant introduces evidence that has the effect of negating any element of the offense, the government must disprove that defense beyond a reasonable doubt. “To find guilt, the jury had to be convinced that none of the evidence, **whether offered by the State or by Martin in connection with her plea of self-defense** , raised a reasonable doubt that Martin had killed her husband, that she had the specific purpose and intent to cause his death, or that she had done so with prior calculation and design. It was also told, however, that it could acquit if it found by a preponderance of the evidence that Martin had not precipitated the confrontation, that she had an honest belief that she was > in imminent danger of death or great bodily harm, and that she had satisfied any duty to retreat or avoid danger. The jury convicted Martin.” _Martin v.Ohio_, 480 U.S. 228 at 233(emphasis added). In any case, I see no compelling reason to argue about terminology. It is generally the case if the defendant creates a scenario that creates a reasonable doubt, even if the prosecution creates 200 scenarios that create reasonable guilt, as long as that solitary reasonable doubt scenario exists then the jury will acquit. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 5:06pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/132 "2012-03-23T17:06:21Z")
> [@MandaJo](#): > > So which is it? Either these sorts of ambiguous cases are so rare that they don’t pose much of a threat to the integrity of our justice system as a whole, or they are so common that police can’t send them all even to the Grand Jury for fear of swamping the system. We were working under a hypothetical in which “10,000 such cases had not resulted in conviction.” ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [March 23, 2012, 5:16pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/133 "2012-03-23T17:16:24Z")
**Martin Hyde** , your own cite seems to say that at a minimum a preponderance of evidence is required to support an affirmative defense. Which was what I said: > [@](#): > > The level of evidence required to generate an affirmative defense, often called the “burden of production” varies with the defense. For some defenses it is by a “preponderance,” (entrapment, Jacobson v. U.S., 112 S.Ct. 1535 (1992) while other defenses require “clear and convincing evidence” (normally a statutory requirement, such as insanity, 18 U.S.C. § 17(b)). Whether you call that a burden of proof or a burden of production appears to me to be merely a semantic question. The defendant does have a burden to present evidence in support of his defense. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 5:16pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/134 "2012-03-23T17:16:25Z")
> [@Spoke](#): > > Ah, here we go. I found it. Looks like you are right, **Martin Hyde** : > > [Montijo v. State of Florida](http://www.miami-criminal-lawyer.net/caselaw/2011/04/15/michael-v-montijo-appellant-v-state-of-florida-appellee/). > > It still seems to me it should be a jury question in the Martin case, not a matter for police discretion. There is plenty of evidence undercutting the self-defense claim. I don’t think the expert you quoted was wrong, I think he was just being loose with the term **burden of proof**. He was only semantically wrong, but his point wasn’t invalid. The quote from the Federal criminal defenders is notable because it contends the primary goal when producing an affirmative defense is to secure a jury instruction from a judge, meaning the court has accepted to some degree the premise that the affirmative defense is at least something the jury needs to consider in their deliberations. I think that is probably true from a perspective of trial tactics, if the last thing the jury is left with is a jury instruction from the judge explaining how they must acquit if they found the defendant’s self defense claim reasonable will probably impact significantly their deliberations. However even sans any jury instructions, if a jury believes your alternative is reasonable and the prosecution has done nothing to undermine that, a proper jury will acquit. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 5:20pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/135 "2012-03-23T17:20:54Z")
> [@Spoke](#): > > Martin Hyde, your own cite seems to say that at a minimum a preponderance of evidence is required to support an affirmative defense. Which was what I said: > > Whether you call that a burden of proof or a burden of production appears to me to be merely a semantic question. The defendant does have a burden to present evidence in support of his defense. Right, I think we agree on the semantic nature of the proof vs. production argument. As to the preponderance of the evidence specifically, that closest I think you get to any objective measure of that is whether or not a judge proffers jury instructions on how to consider an affirmative defense. Of course the rules on giving jury instructions probably (certainly) varies in each of the fifty states. It’s not inconceivable in some States you can get a jury instructions on an affirmative defense claim even if the court believes the affirmative claim is totally without merit (but I have no idea.) The technical legal “flow” seems to be: 1. Establish your defense 2. Sustain it in the face of prosecution attempts to undermine 3. Secure acquittal But I think the way a jury actually works is: 1. Hears prosecution’s theory. 2. Hears defense claim of self defense 3. Hears any rebuttals. 4. Makes a decision based on which story they believe. A jury isn’t necessarily going to informally say “alright, let’s first decide if the self defense claim has merit, if it does, we need to decide if the prosecution disproved it.” If the prosecution has disproven the self defense claim, the jury will just convict outright in most cases. If the self defense claim sounds reasonable and some portion of the jury believes it, they will acquit or fail to reach a verdict. ---
**Author:** ![SmellMyWort](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SmellMyWort](https://boards.straightdope.com/u/SmellMyWort)\ **Post date:** [March 23, 2012, 5:44pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/136 "2012-03-23T17:44:52Z")
> [@Steophan](#): > > Yes, he should be prevented from speaking in his own defense :smack: > > You should give his statement as much weight as any other. The fact that he may have reason to lie is not, by itself, evidence that he’s lying. > > If his statement fits the other evidence, it is evidence of his innocence, but if it conflicts with the evidence, it is evidence of guilt. Either way, it absolutely needs to be taken into account. > > In the extremely unlikely event that there is _no_ other evidence, it should be taken at face value. Don’t put words in my mouth. I think his word should be heard, but it should be questioned. Fact: Zimmerman did not initiate contact with Martin in order to stop a crime. Contact doesn’t have to be physical. Zimmerman clearly made his presence known to Martin based on Z’s 911 call, resulting in Martin fleeing. After this, we know that Z follows M to some extent. The police should have questioned Z’s motives. A kid walking down the street with a hoodie on is not the same as a prowler peeking in a window and hiding behind bushes. Fact: Martin was unarmed. The police should have questioned Z’s need to use deadly force against an unarmed person. Fact: Z had minor injuries. With what we know, these injuries seem inconsistant with the threat of being beaten to death by Martin. Those facts alone should have brought the claim of self defense into question and led the police to treat the case differently (at least as far as we know) from the getgo. No, not necessarily immediate arrest, but at least given closer scrutiny than it appears was initially given. Maybe tougher questioning or checking to make sure he wasn’t under the influence of anything. We also have a witness who says she heard the kid yell out, yet we have the cop telling her no it was Zimmerman. How does he know this? Oh yeah, that’s what Zimmerman told him. WTF! ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [March 23, 2012, 5:44pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/137 "2012-03-23T17:44:53Z")
> [@Martin\_Hyde](#): > > We were working under a hypothetical in which “10,000 such cases had not resulted in conviction.” That hypothetical was proposed as a reason why police should use discretion in these self-defense cases and not bring charges. But if these things are really very rare, how can that be the case? ---
**Author:** ![orcenio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/orcenio/32/1036_2.png) [@orcenio](https://boards.straightdope.com/u/orcenio)\ **Post date:** [March 23, 2012, 6:04pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/138 "2012-03-23T18:04:54Z")
> [@orcenio](#): > > I’m also looking at cases where the law was used to protect violent righteous nutjobs. Absolute insanity. > [@Martin\_Hyde](#): > > In a hypothetical case where I chase someone down to kill them in revenge for stealing from me, the stand your ground statute does not protect that behavior. In a very real case in the OP where a violent righteous nutjob chased and stabbed to death a petty thief, stealing car radios, the stand your ground statute does protect that behaviour. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [March 23, 2012, 6:15pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/139 "2012-03-23T18:15:26Z")
Its a terrible law. It lets people get away with murder, literally. Unfortunately, those of us who are sane are not going to take advantage of it. That’s the problem with being smarter than idiots, the idiots will do anything they can get away with to achieve their goals but the rest of us wouldn’t, giving them a bit of an advantage in the stupidity department ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 23, 2012, 6:34pm UTC](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560/140 "2012-03-23T18:34:04Z")
> [@orcenio](#): > > In a very real case in the OP where a violent righteous nutjob chased and stabbed to death a petty thief, stealing car radios, the stand your ground statute does protect that behaviour. The text of the law says otherwise. All it does is mean the prosecution cannot secure a conviction just by demonstrating the defendant had the ability to easily flee. [Previous page](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560.md?page=6) [Next page](https://boards.straightdope.com/t/floridas-stand-your-ground-law-good-or-bad-law-poorly-understood/616560.md?page=8)