# Should all homicides require an affirmative defense to not be manslaughter or murder? **URL:** \ **Category:** Great Debates\ **Created:** [August 23, 2016, 3:58pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738 "2016-08-23T15:58:35Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [August 24, 2016, 1:44am UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/21 "2016-08-24T01:44:16Z")
Since I don’t wtf I’m talking about, I’ll only add that “self defense” in a legal defense need only introduce reasonable doubt in the jury’s minds. I assume it doesn’t need to be proved, just be reasonable. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 24, 2016, 2:53pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/22 "2016-08-24T14:53:33Z")
> [@watchwolf49](#): > > Since I don’t wtf I’m talking about, I’ll only add that “self defense” in a legal defense need only introduce reasonable doubt in the jury’s minds. I assume it doesn’t need to be proved, just be reasonable. No. Its different state by state, but when self defense is an affirmative defense (unlike in Florida) the elements of homicide are proven by the prosecution, then the defense has to prove that the homicide was justified because it was in self defense. Its not introduced to create an reasonable doubt as to whether or not you committed the homicide. It is introduced as an excuse for committing that homicide. ---
**Author:** ![boffking](https://avatars.discourse-cdn.com/v4/letter/b/858c86/32.png) [@boffking](https://boards.straightdope.com/u/boffking)\ **Post date:** [August 24, 2016, 3:12pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/23 "2016-08-24T15:12:24Z")
No matter how many threads people start about Trayvon Martin, it won’t bring him back to life. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [August 24, 2016, 3:43pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/24 "2016-08-24T15:43:57Z")
> [@Damuri\_Ajashi](#): > > Affirmative defenses have a LONG HISTORY of being proven by the defense AFTER the underlying crime is proven by the prosecution. I’m sorry but I’m missing your point here. A defendant can always choose to use an affirmative defence; the OP is about forcing the defendant to use one. ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [August 24, 2016, 4:01pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/25 "2016-08-24T16:01:06Z")
> [@boffking](#): > > No matter how many threads people start about Trayvon Martin, it won’t bring him back to life. Random Man! ---
**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:** [August 24, 2016, 5:13pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/26 "2016-08-24T17:13:05Z")
> [@Jimmy\_Chitwood](#): > > No. > > And if you can’t see any space in between calling George Zimmerman a vigilante and a yahoo on the one hand, and not believing in a presumption of innocence on the other, I think this isn’t a problem that’s going to be resolved by a robust debate about legislative policy. This. I think Zimmerman is a sketchy guy and he did some stupid things (not being illegal doesn’t make them smart decisions), but the onus should always remain on the prosecution to prove their entire case, not just that the person is dead by the defendant’s hand. Yeah, sometimes this means people that pretty much everyone agrees is guilty (eg, OJ Simpson), but it seems to me that the idea of requiring an affirmative defense in all situations of homicide goes against this presumption of innocence. Not all cases of homicide are (or should be) crimes. If anything, it seems to me arguing self-defense when it’s fabricated ought to make the prosecutions case easier. The defendant is conceding the point that they killed the person, and by giving their own account of what happened, since it’s a lie, they now have more ways to poke holes in their defense or might even point to some evidence they might not otherwise have come across. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [August 24, 2016, 5:15pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/27 "2016-08-24T17:15:06Z")
Is the OP asking whether there should be a trial of fact about every single death involving struggle between two people – that prosecutors and/or police should not have any choice BUT to bring charges? No. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [August 24, 2016, 5:38pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/28 "2016-08-24T17:38:32Z")
> [@Damuri\_Ajashi](#): > > I don’t think you know what you are talking about. In fact, almost nobody here seems to know wtf they are talking about. The sum total of the law cannot be put on a series of bumper stickers. I think you are making a lot of assumptions. What I stated is correct, it is the basis of American law. If we had a clear proposal in the OP there would be many details to discuss, but based on what is expressed there it is in opposition to how the law works on the simple and accurate basis that I described. No defendant needs to provide a defense. And whether or not they do the burden is on the state to prove that a crime was committed, and that it was committed by the defendant. The way the OP reads we would have the state charge someone with a crime and that person would be guilty simply by not providing an affirmative defense without any requirement for the state to prove their guilt. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 24, 2016, 5:46pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/29 "2016-08-24T17:46:04Z")
> [@Quartz](#): > > I’m sorry but I’m missing your point here. A defendant can always choose to use an affirmative defence; the OP is about forcing the defendant to use one. The OP is referencing the Zimmerman case. In the Zimmerman case the prosecutor had to prove that it was NOT self defense. In the past the defendant had to prove that the preponderance of the evidence showed that he was acting in self defense. He might have met this threshold but it is still a higher threshold than simply creating a reasonable doubt. I would suggest that self defense is tough to prove when you shoot an unarmed teen that you followed in your truck and the police asked you not to get involved. Self defense ought to be an affirmative defense. It is not these days in most places but it used to be and I am not convinced that this is progress. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 24, 2016, 5:50pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/30 "2016-08-24T17:50:39Z")
> [@TriPolar](#): > > I think you are making a lot of assumptions. What I stated is correct, it is the basis of American law. If we had a clear proposal in the OP there would be many details to discuss, but based on what is expressed there it is in opposition to how the law works on the simple and accurate basis that I described. No defendant needs to provide a defense. And whether or not they do the burden is on the state to prove that a crime was committed, and that it was committed by the defendant. The way the OP reads we would have the state charge someone with a crime and that person would be guilty simply by not providing an affirmative defense without any requirement for the state to prove their guilt. The state still has to prove the elements of homicide according to the OP. Then OP is clearly referencing the Zimmerman trial. The facts of the Zimmerman trial and the controversy surrounding it where it came to affirmative defense was clearly about who had the burden of proving self defense. I would think that all of those things are the inevitable assumptions you would make about what the Op is asking. If it only seems that way to me then I apologize for the misunderstanding. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 24, 2016, 5:56pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/31 "2016-08-24T17:56:06Z")
The problem with the Zimmerman case was not that the evidence contradicted his account. The problem was that his account itself supported the charge of murder. The prosecution had all the tools they needed, under the law, to make a case. For unknown reasons, they chose not to. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [August 24, 2016, 6:38pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/32 "2016-08-24T18:38:32Z")
> [@Quartz](#): > > I’m sorry but I’m missing your point here. A defendant can always choose to use an affirmative defence; the OP is about forcing the defendant to use one. I don’t think it’s about forcing a defendant to use an affirmative defense. It’s about categorizing a particular defense as an affirmative defense. I’m going to try to explain the difference. An ordinary defense such as an alibi must be disproven by the prosecution beyond a reasonable doubt. If I am charged with a homicide,and my defense is that I was in another state at the time it happened, the state must disprove my alibi beyond a reasonable doubt. An affirmative defense ( which might include entrapment or “insanity”) requires the defendant to prove that he was entrapped or that he lacked the mental capacity to know that his conduct was wrong \*after the prosecution has proven that he engaged in the conduct \*. The affirmative defense usually requires a lower standard of proof than “beyond a reasonable doubt”. The prosecution must prove the conduct, but they don’t have to prove that I was entrapped or that I am sane. It’s not a matter of wanting to hold a trial for every single homicide - it’s a matter of what we want once the prosecution has enough evidence to bring charges. Do we want the defendant to have the burden of convincing the jury he was justified or do we want the prosecution having the burden of proving he wasn’t? Both categories of defense exist already - the question is where we put self-defense. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [August 24, 2016, 6:41pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/33 "2016-08-24T18:41:01Z")
> [@Chronos](#): > > The problem with the Zimmerman case was not that the evidence contradicted his account. The problem was that his account itself supported the charge of murder. The prosecution had all the tools they needed, under the law, to make a case. [Here’s](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0782/Sections/0782.04.html)the definition of murder under Florida law. Can you please cite the portions of Zimmerman’s account where he mentions his premeditation of murdering Martin, or where Zimmerman admitted in engaging in > [@](#): > > a. Trafficking offense prohibited by s. 893.135(1), > > b. Arson, > > c. Sexual battery, > > d. Robbery, > > e. Burglary, > > f. Kidnapping, > > g. Escape, > > h. Aggravated child abuse, > > i. Aggravated abuse of an elderly person or disabled adult, > > j. Aircraft piracy, > > k. Unlawful throwing, placing, or discharging of a destructive device or bomb, > > l. Carjacking, > > m. Home-invasion robbery, > > n. Aggravated stalking, > > o. Murder of another human being, > > p. Resisting an officer with violence to his or her person, > > q. Aggravated fleeing or eluding with serious bodily injury or death, > > r. Felony that is an act of terrorism or is in furtherance of an act of terrorism, > > s. Human trafficking; or > > 3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, Thanks in advance. Regards, Shodan ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [August 24, 2016, 6:47pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/34 "2016-08-24T18:47:47Z")
And, in case you are going with the “aggravated stalking” part, keep in mind that this also has a specific definition - > [@](#): > > A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. ([Cite](http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0784/Sections/0784.048.html)). So I will also need to see the parts of Zimmerman’s account where he mentions making a credible threat against Martin. Again, thanks in advance. Regards, Shodan ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 24, 2016, 7:14pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/35 "2016-08-24T19:14:57Z")
> [@Shodan](#): > > [Here’s](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0782/Sections/0782.04.html)the definition of murder under Florida law. Can you please cite the portions of Zimmerman’s account where he mentions his premeditation of murdering Martin, or where Zimmerman admitted in engaging in > Thanks in advance. > > Regards, > Shodan Does shooting a child=aggravated child abuse? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [August 24, 2016, 7:43pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/36 "2016-08-24T19:43:53Z")
> [@Shodan](#): > > [Here’s](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0782/Sections/0782.04.html)the definition of murder under Florida law. Can you please cite the portions of Zimmerman’s account where he mentions his premeditation of murdering Martin, or where Zimmerman admitted in engaging in You forgot murder in the second degree, which doesn’t involve premeditation > [@](#): > > (2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [August 24, 2016, 7:50pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/37 "2016-08-24T19:50:30Z")
> [@Damuri\_Ajashi](#): > > The OP is referencing the Zimmerman case. In the Zimmerman case the prosecutor had to prove that it was NOT self defense. In the past the defendant had to prove that the preponderance of the evidence showed that he was acting in self defense. He might have met this threshold but it is still a higher threshold than simply creating a reasonable doubt. I would suggest that self defense is tough to prove when you shoot an unarmed teen that you followed in your truck and the police asked you not to get involved. > > Self defense ought to be an affirmative defense. It is not these days in most places but it used to be and I am not convinced that this is progress. This is a recipe for false convictions. The U.S. justice system has a lot of problems, but not convicting enough people ain’t one of them. If there’s not enough evidence to prove murder, then there’s not enough evidence to prove murder, and no conviction should result. > [@Chronos](#): > > The problem with the Zimmerman case was not that the evidence contradicted his account. The problem was that his account itself supported the charge of murder. The prosecution had all the tools they needed, under the law, to make a case. For unknown reasons, they chose not to. Well, don’t tease us! Please, elaborate. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [August 24, 2016, 8:04pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/38 "2016-08-24T20:04:23Z")
> [@Damuri\_Ajashi](#): > > The state still has to prove the elements of homicide according to the OP. Then OP is clearly referencing the Zimmerman trial. The facts of the Zimmerman trial and the controversy surrounding it where it came to affirmative defense was clearly about who had the burden of proving self defense. I would think that all of those things are the inevitable assumptions you would make about what the Op is asking. If it only seems that way to me then I apologize for the misunderstanding. Even with those assumptions I still disagree. The state must prove that a crime took place and assuming that every homicide is a crime simply gives the state the opportunity to place a person in jeopardy without cause. It further requires the defendant to testify against himself in that circumstance. You can disagree if you like, you wouldn’t be alone, but I think that a homicide in self defense should not be a crime and it should be the obligation of the state to prove that the self defense was not justification. That doesn’t require the state to offer any such evidence, it usually isn’t necessary, but defendants should not be placed in the position of testifying against themselves and then saying they had a really good excuse if the state can’t prove all the elements of the crime including the lack of justification. None of that has anything to do with the Zimmerman case. It probably would have turned out exactly the same if Zimmerman had to offer an affirmative defense because of the case presented by the state and the weakness of our criminal justice system for which Florida is the poster child. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [August 24, 2016, 8:46pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/39 "2016-08-24T20:46:52Z")
> [@Damuri\_Ajashi](#): > > The OP is referencing the Zimmerman case. Did you not read the last sentence of the OP? Which I quoted in my original response to the OP? I’ll repeat it here: > [@Lumpy](#): > > So should all homicides require an affirmative defense against criminal charges? Zimmerman is actually irrelevant to that question. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 24, 2016, 9:31pm UTC](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738/40 "2016-08-24T21:31:01Z")
> [@Human\_Action](#): > > This is a recipe for false convictions. The U.S. justice system has a lot of problems, but not convicting enough people ain’t one of them. > > If there’s not enough evidence to prove murder, then there’s not enough evidence to prove murder, and no conviction should result. WTF are you talking about. The prosecution HAS proven murder in my scenario. It is up to the defendant to prove that the murder was justified. That is the nature of an affirmative defense. Typically, the defendant must prove with the preponderance of the evidence that the murder was justified in some way. This is the way we did things for centuries in most jurisdictions until recent times. Now the prosecution has to prove beyond a reasonable doubt that it WASN’T self defense. Why not make the prosecution prove beyond a reasonable doubt that the defendant WASN’T insane as well? [Previous page](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738.md?page=1) [Next page](https://boards.straightdope.com/t/should-all-homicides-require-an-affirmative-defense-to-not-be-manslaughter-or-murder/763738.md?page=3)