Don’t confuse “merit” with evidence. All of the evidence could be the most obvious of fabrications, or extremely feeble, but it still counts as evidence, no matter how not-credible. So, if a defendant presented literally the weakest evidence possible on each element of self defense, the prosecution would then have the burden. It’s not a ruling that there’s merit to the claim.
That’s what I was getting at, but it’s not a big thing like I was thinking it might be. It’s like knowing/understanding police had probable cause to make an arrest or something similar to that.
I do think who has the burden is a big thing. Up to people to change the law if they so desire.
Possibly so.
Yes–which I believe we have both said, unless I misunderstand.
Yes, but I think the specifics here actually do vary a good bit from State to State. As I see this referenced in different ways in different States.
I think this is incorrect, functionally they do. The burden of proof in these cases will generally hold that the prosecution must demonstrate beyond a reasonable doubt, that the defendant did not act in self-defense. I would say that’s quite literally “having to disprove” it, although maybe there’s a English usage quibble afoot there, I’m not sure.
I would agree, and I think this is what we both had said previously?
I trollishly said on FB: “Trump says Kyle is like the son he never had”. I’m waiting on replies.
The Uncle Jimbo and Ned defense?
No, I’m quite sure this is wrong. Looking for a cite. In states that require defendants to prove the affirmative defense, there is no burden shifting to the state on that defense. The prosecution does not have to disprove it. If there’s sufficient evidence for a jury to find either way on the defense, it goes to the jury to determine if it’s been proved by the defendant by a preponderance. The risk of the evidence being in equipoise goes to the defendant – that is, if the jury decides that they can’t tell if it was self defense, then, in those jurisdictions, the defense fails.
I would agree. That is what I was thinking of as a “classic” affirmative defense.
Basically, I admit murder (criminal killing), but say it is in self-defense. I must prove it was self-defense, and if I don’t prove that, I’m left with murder.
I’m definitely open to be wrong.
The next time someone disagrees with me, I should do two things:
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Get a gun, the bigger, the better, and
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Ask him to hit me, so I can
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Kill him. I now have precedent!
I’m pretty sure the mindset that led to lynching in the United States had to do with certain views on the different races and what their relationship with one another should be. YMMV.
Yes. But not in Wisconsin.
@Martin_Hyde
Patterson v. New York, 432 US 197 (1977) upheld placing the burden for an affirmative defense on the defendant, with no burden for the prosecution to disprove. (It was extreme emotional disturbance in that case). Dixon v. US, 548 US 1 (2006) upheld it for a duress defense.
As long as the burden of disproving an element that defines the offense isn’t placed on the defendant, it’s constitutional. Ah. Found the cite. Martin v. Ohio, 480 US 228 (1987):
(From the syllabus)
It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder. There is no merit to petitioner’s argument that it is necessary under Ohio law for the State to disprove self-defense since both unlawfulness and criminal intent are elements of serious offenses, while self-defense renders lawful that which would otherwise be a crime and negates a showing of criminal intent.
I don’t know which states do it this way, but some do, and it’s permitted by the Constitution.
Right, in Wisconsin, the burden of proving Defendant did not act in self defense is on the State; whereas in other “classic affirmative defense” States the burden is on the Defendant to prove that he acted in self-defense.
It’s a subtle, but big difference. Like NFL overturning a call via replay. Whatever was called on the field is pretty beneficial (ie, the initial burden). The burden is the call on the field is correct, unless replay can convincingly (or whatever the standard is) prove that the call was incorrect. Not impossible to overturn, but harder. For self defense comparisons, if the burden is on the defense, the “call on the field” is he did not act in self defense and the defense must prove he did. If the burden is on the prosecution, the “call on the field” is that Defendant did act in self defense and the prosecution must prove he did not.
Precedent for self defense goes back hundreds of years. What have you been waiting for?
You’re absolutely right that it was rooted on their views on the nature of race and the relationships between different races but that in and of itself doesn’t explain the frequency of lynching between 1877 and 1939. One of the reasons lynching was so prevalent in the United States, particularly in the South, is because the people had no confidence in the ability of the system to deal with the “Negro problem.” When witnesses/participants of lynching were interviewed and asked why they didn’t let the judicial system do its job they often voiced fears that they couldn’t trust the courts to come to a “fair” verdict as the system was designed for civilized whites. Lynching as an American past time didn’t end because someone passed a law. They simply became too embarrassing to sustain and people grew confident that the legal system could control blacks.
Not that I think being pissed off at the verdict means we’re adopting the attitude of those who lynched.
I don’t think any of that fully encompasses the reasons for lynching, which were more like racist moral panic and so little regard for the humanity of black people that a lynching could be seen an occasion for a nice picnic.
Comparing it to people being upset by the result in this case is way inappropriate, I think.
Decades?
Give us Barabbas!
You’ll note that I did type “one of the reasons” rather than stating a lack of confidence was the entire reason for the phenomenon. But, yes, I do agree that comparing lynching to people upset about the results of the trial is inappropriate.
Murder is legal for some people. I guess that’s not really new. Kyle Rittenhouse not guilty on all charges: Live updates
If I was him, I’d get lipo on my face and grow a beard.
I wonder whether it’s still possible for the federal government to bring charges, like they used to do in the 1960s.
It has historically been a more difficult defense to mount. At least for some people. I suppose in a way we are returning to our historical roots. Certain folks get to kill other folks.