# Why hasn't the Neighborhood Watch shooter been arrested? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 12, 2012, 12:53am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504 "2012-03-12T00:53:26Z")\ **Posts on this page:** 20\ **Page:** 20
**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 16, 2012, 4:33am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/381 "2012-03-16T04:33:25Z")
> [@Richard\_Parker](#): > > Just skimmed the thread, so apologies if I missed something. Two points: > > (1) **Kimmy\_Gibbler** , I think you’re misstating the law. In Florida, like most states, the burden of disproving self-defense falls on the prosecution, not the accused. \* E.g., Jenkins v. State\*, App. 2 Dist., 942 So.2d 910 (2006). So that makes it more plausible that the reluctance to arrest is about whether the police think there’s sufficient evidence to prosecute, though prosecutorial discretion could still play a role even where self-defense is the accused’s burden. > > (2) Nevertheless, there’s obviously enough evidence known to the public to prosecute and overcome a self-defense theory. Someone upthread said common sense is not evidence, but that’s just not true. A jury is perfectly able to make common sense inferences from the fact that this victim had no obvious reason to threaten the life of the killer, and the fact that it was the killer that initiated contact. That fact alone is enough to cast doubt on the killer’s credibility sufficient to overcome the affirmative defense. > > So the (sincere on my part) question is this: what evidence, now unknown to us, could there possibly exist to persuade the prosecution (and by extension the police) that this isn’t a case worth charging? > > Would evidence that the victim attacked the killer at some unknown point in time be sufficient? Why? > > I suppose there could be evidence that the victim told a friend he was gonna randomly mug a guy that night or something, but is that the kind of outlandish hypothetical we’re left with, or is there something plausible here? I don’t think based on what we know now there is enough to “overcome” the claim of self-defense beyond a reasonable doubt. I think there is certainly enough to charge (although my reading of the Florida statute seemed to suggest premeditation and willful malice were parts of the murder statute so I do think manslaughter would be much more likely an appropriate charge, I’ll reread the Florida statute at some point), and I think there is enough if the prosecutor lays it out the jury will be left with a hard decision. I wouldn’t want to bet on the outcome though, I think it’d be a close call. If I was his defense attorney my explanation for the actions of Zimmerman would basically be that he was simply following Trayvon Martin because he did not want him to get away. That Trayvon observed Zimmerman following him and became agitated at being followed and that Trayvon initiated a fight, beat Zimmerman to the ground, and Zimmerman (after yelling for help and receiving none) used his gun in self defense. I think the fact that Zimmerman could have stayed in his car will help the prosecution. I think the fact that you can’t prove any motive for Trayvon attacking Zimmerman will help the prosecution. I think a lot of things will help the prosecution, really. But I do think the defense could put together a decent narrative as well. I said earlier it’d be a hard decision, but the more I think about it I just don’t think I **could** really decide. It’s too important a matter to decide based on “what we know right now”, I’d want the full facts that the police have. If Zimmerman fired at Trayvon from a prone position, and the bullet wound shows evidence it came into Trayvon’s chest from below, that would help Zimmerman’s narrative. If we know the precise nature of Zimmerman’s injuries that could help Zimmerman. If we have forensic evidence on Trayvon’s body showing abrasions on his knuckles consistent with punching someone, that would help Zimmerman. I do think we know that the conflict never would have happened if not for Zimmerman, but that isn’t the same as saying Zimmerman is guilty of manslaughter. If I was Zimmerman and I started following someone to basically monitor their activities, that might piss them off. Probably justifiably (who likes neighborhood watch busy bodies, I certainly don’t), and some people might be prone to getting confrontational over it. If I’m doing something legal (following someone to monitor their activities) I do not think that meets the legal requirement of “provocation”, so if I was Zimmerman and just doing that, and Martin beat me up and I didn’t shoot him and Martin just fled the scene–I think Martin would be charged with assault and convicted. Just because Zimmerman put himself in a stupid situation doesn’t in itself prove provocation, nor does it necessarily remove the credibility of a self-defense claim. Anyway, again, just speculating. We’re speculating now on what’s available through the news, the news is inherently bad at reporting on the important particulars in criminal cases. That is something I’ve learned through years of reading the news and following criminal cases. Reporters don’t always understand what is important and will emphasize things that are not or fail to report on minor details that aren’t material to them but which might show an import legal element of the case. Just based on the “news clippings” I’d say I’m 60% sure Zimmerman is at wrong and I think it’d be appropriate for him to go away for manslaughter. Which means I feel it more likely than not that is what should happen. But that’s just my feeling based on “news clippings”, and I’ll never tie myself to a real opinion on a criminal case when we don’t have all the facts to go on. It might be fun to discuss but it’s essentially masturbatory speculation. ---
**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 16, 2012, 4:39am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/382 "2012-03-16T04:39:00Z")
> [@BlankSlate](#): > > Complaints about proceedure aside, the police made a clumsy mess of public relations. They should have passed the buck with: “we’ve passed our findings on to the state’s attorney and they willl make the final determination.” > All they’ve managed to do is cause more confusion. Yeah, but a small town police chief probably doesn’t have any PR staff working for him. I definitely think the police have bungled this from a PR perspective. If I was in their shoes with this inflammatory case, and the investigator genuinely wasn’t sure if he should charge, and I wasn’t sure if we should charge, I would pass it on to the State’s Attorney and like you said just say in a press conference that the case is awaiting a final determination by the State’s Attorney. I wouldn’t come out so definitively in support of the suspect, even if I was in support of the suspect and even if I felt his self defense claim was credible and he had demonstrated it was credible. I’d keep my opinion on how credible the suspect’s explanation was to myself, and would pass it on to the State’s Attorney with my opinions included, but that would be for his eyes not the press. As to why I hadn’t made an arrest, I’d simply explain we were still conducting our investigation and working with the State’s Attorney to come to a final determination. Sometimes under pressure you feel the urge to say “anything” to stop people that are complaining, I think non-commital answers, while not doing anything to allay the concerns of many parties in this case, would at least keep the department out of the potential political shit storm they could get hit with if this thing ends up going to a criminal trial. (At that point your department now publicly looks incompetent because the State’s Attorney is publicly overruling your initial decision.) ---
**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 16, 2012, 4:49am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/383 "2012-03-16T04:49:22Z")
> [@RickJay](#): > > The difference there is that \*\*serial killers usually aren’t found standing over their victims with the murder weapon in their hands. \*\* > > What I find fascinating here is that Zimmerman was found standing over the body with the smoking gun in his hand, and what I am being told, in this thread, is that all he has to do is say “It was self defense” and he can get away with it. > > I am no longer particularly interested in Zimmerman’s case; what fascinates me is that the law could actually be written in such a manner as to allow any person to simply claim self defense in response to any killing without the trouble or bother of mounting an affirmative defense. It would effectively legalize a lot of murder. And yet that seems to be what people are saying, including the Sanford chief of police. > > Why couldn’t a Florida resident simply walk in on their spouse and shoot them in the head? If the Sanford chief of police is correct, it would be impossible for such a person to be charged with a crime, unless they had left behind some sort of trail indicating they planned to do it. Both I and **Kimmy\_Gibler** have stated that self-defense claims do not shift the burden of proof. A self defense claim does create a burden of production on the defense that is not present in a regular defense in which the defense simply tries to assert the State lacks sufficient evidence that the defendant committed the crime. Typically the “burden of production” is that you can establish a claim beyond a preponderance of the evidence. The problem with your “concern” that all you have to do is say “self-defense” and you get off, is that’s only true if there is no physical evidence, no circumstantial evidence, no testimony from people who may have heard the incident or who arrived on the scene of the incident and etc. Imagine a different scenario where I’m jogging through a very, very remote forest. I know a certain person jogs along a trail here occasionally, I do not know this man personally whatsoever. However, I know that he has a criminal history and has served time for assault and robbery in the past. I’ve decided to murder this man just because. I start jogging some 20 minutes after he does, and eventually I lie in wait for him deep in the forest. When he’s coming back, towards me, I block his path and antagonize him. I call him names, shove him and etc. He eventually attacks me and I take some blows. I then draw a gun and shoot him dead, just as I had planned. I then call the relevant law enforcement and claim self defense. That’s a vastly different scenario than the Zimmerman/Martin case, but in that scenario do you not see that I could just essentially shoot someone (in theory) and claim self defense and get off? How would a prosecutor possibly hope to convict me in my contrived scenario here? (Assume the investigation finds no evidence that I had been previously looking up information about this guy’s history or anything of that nature, and assume nothing in the physical evidence betrays my true intentions.) Now, the reason this isn’t a “murder loophole” is because my scenario is extremely contrived and fanciful. A lot of stuff could go wrong in the above scenario. I could get beat so viciously I have no ability to draw my weapon. I could pull the gun and the guy takes it from me and kills me. I could shoot him but he is able to run away and report me to police. I could slip up in my story, I could leave a trail somehow that shows I had been planning this etc etc etc. On top of all that, if I was just some pleasure killer and was able to get someone way out in the woods by themselves it makes a lot more sense to just kill him and leave, versus kill him, admit to the homicide while trying to create a false air tight case of self 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 16, 2012, 4:54am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/384 "2012-03-16T04:54:44Z")
> [@Arnold\_Winkelried](#): > > Sure enough, but pretty much these scenarios are all saying “if the police know a bunch of stuff we don’t, then they might have had reason to not arrest Mr. Zimmerman”. Which as far as idle speculation goes, is fine, but I don’t see how it really helps us arrive at the truth any better. My idle speculation is that the police have a (maybe unconscious) bias which is what made them give more weight to the shooter’s statement than to the facts in the case. > > I personally am looking at it from a slightly different point of view: with the information I have now, I think that, even if the police chose not to arrest him immediately, Mr. Zimmerman should be charged with something (like manslaughter) eventually. Mostly I’m saying that I hope Mr. Zimmerman doesn’t get away with it. Right, and I’ve always maintained the police could be acting incompetently or improperly _in addition_ to the other possibilities I’ve talked about. It’s always **possible** the police are incompetent or misbehaving. And of course more information about this case has come out as we have discussed the thread. My opinion of the “news evidence” is that it’s become worse for Zimmerman as time has gone on, not better. That definitely affects my “uninformed opinion” on Zimmerman personally. It doesn’t change my opinion on the general principles involved with a decision to charge versus not charge. Nor does it change my overall opinion that without a full finding of fact we really won’t know why Zimmerman wasn’t arrested initially. ---
**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 16, 2012, 4:57am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/385 "2012-03-16T04:57:51Z")
> [@enomaj](#): > > Sanford PD says Mary Cutcher’s interview inconsistent with statement she gave them. > > [http://www.orlandosentinel.com/news/local/seminole/os-trayvon-martin-witness-tv-report-20120315,0,559932.story](http://www.orlandosentinel.com/news/local/seminole/os-trayvon-martin-witness-tv-report-20120315,0,559932.story) > > [http://www.miamiherald.com/2012/03/15/2696446\_p2/trayvon-martin-case-give-do-public.html](http://www.miamiherald.com/2012/03/15/2696446_p2/trayvon-martin-case-give-do-public.html) > > Second story talks about a 13 year old witness also. I almost didn’t want to say anything about her interview because I feel I’m already being described as a “Zimmerman supporter” when I am anything but. However, random witnesses who report stuff to the press and claim the police didn’t do what they should have done aren’t intrinsically believable to me. It’s possible that Cutcher has decided to change her “recollection” of the events based on things she has learned about the case that have thus caused her to reinterpret things. Some people are also intrinsically unreliable. Some people may feel the police didn’t think their precious eyewitness account was very important (because it wasn’t) so in a pique of anger they go off to the press to get some more attention by dramatically altering their eyewitness account. Again, I’m just speculating on possible misbehavior. I’ve also speculated the **police** may have acted improperly or incompetently as well. I’m open to anyone being improper or incompetent at any time and any place. That’s why I like to avoid jumping on each new juicy piece of news as though it is a case-shifting piece of given truth. ---
**Author:** ![Pitchmeister](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pitchmeister/32/3459_2.png) [@Pitchmeister](https://boards.straightdope.com/u/Pitchmeister)\ **Post date:** [March 16, 2012, 9:45am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/386 "2012-03-16T09:45:17Z")
What I find curious is that the police keep saying the witness’ TV statement doesn’t fit with her official testimony, but never say a word about what said testimony actually contains. Does it serve some public good to continue to be so vague about what they know? Unfortunately, in the last sentence of her statement, the witness makes the same mistake many people in this thread are making when she asks why Zimmerman doesn’t have to prove his claim of self defense. However, she’s been living in the neighborhood for three months and claims she doesn’t even know Zimmerman - what incentive would she have to suddenly change her testimony and possibly perjure herself? ---
**Author:** ![grude](https://avatars.discourse-cdn.com/v4/letter/g/e47774/32.png) [@grude](https://boards.straightdope.com/u/grude)\ **Post date:** [March 16, 2012, 10:12am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/387 "2012-03-16T10:12:35Z")
There was a similar controversial case in Houston some years back, a neighbor saw two burglers leaving his neighbors house and called 911 and confronted them with a gun and had them lay on the ground at gunpoint. At some point they started rising or approaching the man(or so he claimed) and he shot them and killed them. No charges were filed and he was cleared by the grand jury, some claimed racism to be involved as the shooter was white and both burglers were not. > **[Joe Horn shooting controversy](https://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy)** > > The Joe Horn shooting controversy occurred on November 14, 2007, in Pasadena, Texas, United States, when local resident Joe Horn shot and killed two burglars outside his neighbor's home. Recordings of Horn's exchange with emergency dispatch indicated that he was asked 14 times not to interfere with the burglary, because police would soon be on scene. The shootings resulted in debates regarding self-defense, castle doctrine laws, and Texas laws relating to use of deadly force to prevent or sto On... > [@](#): > > One vital piece of evidence were segments of Mr. Horn’s 9-1-1 calls which could have possibly incriminated Mr. Horn or shown his innocence. The most scrutinized segment is presented below: > > Joe Horn: “I’ve got a shotgun; do you want me to stop them?” > > The Pasadena emergency operator responded: “Nope. Don’t do that. Ain’t no property worth shooting somebody over, O.K.?” > > Mr. Horn said: “But hurry up, man. Catch these guys will you? Cause, I ain’t going to let them go.” > > Mr. Horn then said he would get his shotgun. > > The operator said, “No, no.” But Mr. Horn said: “I can’t take a chance of getting killed over this, O.K.? I’m going to shoot.” > > The operator told him not to go out with a gun because officers would be arriving. > > “O.K.,” Mr. Horn said. “But I have a right to protect myself too, sir,” adding, “The laws have been changed in this country since September the first, and you know it.” > > The operator said, “You’re going to get yourself shot.” But Mr. Horn replied, “You want to make a bet? I’m going to kill them.” > > Moments later he said, “Well here it goes, buddy. You hear the shotgun clicking and I’m going.” > > Then he said: “Move, you’re dead.” > > There were two quick gunshots, then a third. > > “I had no choice,” Mr. Horn said when he got back on the line with the dispatcher. “They came in the front yard with me, man.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 16, 2012, 1:28pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/388 "2012-03-16T13:28:57Z")
As I recall, we had a thread at the time about Mr Horn, with similar reactions about the law from some posters. At least one declared that Texas law allowing deadly force under those circumstances was simply unconstitutional – apparently synonymous with “I don’t like it,” since I don’t recall any mention of just what part of the constitution was supposedly offended. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 4:47pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/389 "2012-03-16T16:47:44Z")
> [@gurujulp](#): > > According to one of the articles linked back around post #180 or so, there was a description of them handcuffing Zimmerman, interrogating him at the station, and then releasing him. > > This is what is termed an arrest, until they decide they don’t want to keep him, based on his statements, demeanor, etc, and they instead call it ‘questioning’ or ‘detaining’ instead. On the paperwork in my town, it is present in the name of the form and says “Arrest or Detainment log” or something similar, one of which is to be circled or checked accordingly. > > So the answer, from my POV as a civilian who has been detained and released, is that it is no different than arrest, one is still in jail until released, and so, in fact, Zimmerman WAS arrested and taken to jail. He was just released a few hours later when they realized they couldn’t charge him. I am assuming if he was cuffed, he went by show of authority and not voluntarily, therefore, it was an ARREST, that is straight from the United States Supreme Court. There is no such thing in the United States as taking a person in for questioning/investigative detention absent probable cause, that violates the 4th AM. Of course, again, I am not refering to a voluntary go in. ---
**Author:** ![SmellMyWort](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SmellMyWort](https://boards.straightdope.com/u/SmellMyWort)\ **Post date:** [March 16, 2012, 5:15pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/390 "2012-03-16T17:15:07Z")
The articles say Martin was found face down. I wonder if he was shot in the front or back. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 5:16pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/391 "2012-03-16T17:16:15Z")
> [@Martin\_Hyde](#): > > The burden of proof in a criminal prosecution is **never** on the defendant, people often claim that in an affirmative defense the burden of proof is on the defendant, but that is just simply not the case. > > In a case of self defense the “burden of production” is on the defense, but once that is satisfied, then just like in any other criminal case, the burden of proof rests with the state. The burden of proof can never be on the defendant, and a quirk in Maine law put the burden of proof on defendants who were exercising an affirmative defense in _Mullaney v. Wilbur_ and Maine law was ruled unconstitutional by the SCOTUS. In Ohio, if a claim of self defense is raised, the burden of proof shifts to the defendant to prove it by a preponderance of the evidence; my source; Dixon v. United States (2006), 126 S.Ct. 2437 – Jury instructions requiring the defendant to establish an affirmative defense by a preponderance of the evidence do not run afoul of the Due Process Clause of the Fourteenth Amendment. Federal defendant claiming duress was denied an instruction placing a burden to disprove on the government. [http://www.opd.ohio.gov/RC\_Casebook/affirmative\_defenses\_in\_general.htm](http://www.opd.ohio.gov/RC_Casebook/affirmative_defenses_in_general.htm) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 5:22pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/392 "2012-03-16T17:22:58Z")
Meant to post this one instead of the above cited; Martin v. Ohio (1987), 480 U.S. 228 – It is not a violation of due process for Ohio to place the burden of proving self defense, by a preponderance of the evidence, upon the accused. ---
**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 16, 2012, 6:58pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/393 "2012-03-16T18:58:38Z")
> [@Pitchmeister](#): > > What I find curious is that the police keep saying the witness’ TV statement doesn’t fit with her official testimony, but never say a word about what said testimony actually contains. Does it serve some public good to continue to be so vague about what they know? > > Unfortunately, in the last sentence of her statement, the witness makes the same mistake many people in this thread are making when she asks why Zimmerman doesn’t have to prove his claim of self defense. However, she’s been living in the neighborhood for three months and claims she doesn’t even know Zimmerman - what incentive would she have to suddenly change her testimony and possibly perjure herself? I think the police are right to not release her testimony. I think the problem the police have is they’ve released anything. I think they should have, all along, not given their opinion on the case but instead said they were working with the State’s Attorney to come to a decision and the SA’s final decision would be released when the State’s Attorney was ready to release it. ---
**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 16, 2012, 7:04pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/394 "2012-03-16T19:04:11Z")
> [@lawbuff](#): > > Meant to post this one instead of the above cited; > Martin v. Ohio > > (1987), 480 U.S. 228 – It is not a violation of due process for Ohio to place the burden of proving self defense, by a preponderance of the evidence, upon the accused. Same phrasing for what I’ve said. The burden of proof is always on the prosecutor. What you’re actually calling “burden of proving self defense” is typically called the “burden of production.” The prosecution has to prove their case, whatever their case may be, beyond a reasonable doubt. If the case is a “whodunit” they have to prove beyond a reasonable doubt that the defendant did it. If the case is a “he did it but says it was self defense/insanity/crime of passion” then there is a burden of production requirement on the defense in which they have to demonstrate beyond a preponderance of the evidence that the act was self defense. If that burden is met, the prosecutor will need to disprove it beyond a reasonable doubt. But as an earlier poster said, prosecutors do not have to refute a defense that is not raised, and if the defense raises an affirmative defense that is weak the prosecutor can attack the credibility of the defense to convince jurors it is not credible. However, by defeating the affirmative defense the prosecutor still has to prove the actual case beyond a reasonable doubt. (The reason Maine’s jury instructions got them in trouble, I believe, is because the judge said if the prosecutor could show the self defense claim wasn’t credible then the jury had to presume the defendant was guilty or murder instead of manslaughter, which violated his due process rights because it unconstitutionally shifted the burden of proof onto him.) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 7:16pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/395 "2012-03-16T19:16:49Z")
> [@Martin\_Hyde](#): > > Same phrasing for what I’ve said. > > The burden of proof is always on the prosecutor. What you’re actually calling “burden of proving self defense” is typically called the “burden of production.” No, I don’t see it that way. If you read the Martin case I cited, the dissent argues the majority sidesteps the Maine case you cite, so, they are different. Burden of production is simply an assertion of a defense. In Ohio, if you have an Alibi as a defense, you must assert it in a timely fashion. Although an Alibi is NOT an AD here, one still has to assert it. > [@](#): > > The prosecution has to prove their case, whatever their case may be, beyond a reasonable doubt. If the case is a “whodunit” they have to prove beyond a reasonable doubt that the defendant did it. Yes, but they do not have to disprove an AD, the defendant is required to prove it, so we differ in our legal interpretations of “burden of production” and “burden of proving self defense”. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 7:32pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/396 "2012-03-16T19:32:25Z")
This lawyer calls the “burden of production” as simply “by a preponderance” or " clear and convincing", or DEGREE of proof as I understand it, and ohio demands a defendant prove self defense by a preponderance. 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 [http://www.fd.org/pdf\_lib/Beneman\_Affirmative\_Defenses\_materials.pdf](http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 7:47pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/397 "2012-03-16T19:47:15Z")
> [@Martin\_Hyde](#): > > If the case is a “he did it but says it was self defense/insanity/crime of passion” then there is a burden of production requirement on the defense in which they have to demonstrate beyond a preponderance of the evidence that the act was self defense. I think from this paragraph I understand now what you are trying to say, equating “burden/degree of proof” with “burden of production”, okay I go along with that. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [March 16, 2012, 7:56pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/398 "2012-03-16T19:56:21Z")
There are two concepts being tossed around in this thread: disproving self-defense and proving that a homicide took place. I can’t wrap my head around how a prosecutor is supposed to disprove self-defense, unless this phrase is being treated interchangeablely with “proving a homicide”. Otherwise, it’s like proving a negative. How do you show prove that someone _didn’t_ commit a certain act? Simply requiring that the State prove a homicide makes more sense to me. To go back to what the police said: > [@](#): > > “In this case, Mr. Zimmerman has made the statement of self-defense," Lee said during Monday’s press conference. " **Until we can establish probable cause to dispute that** , we don’t have the grounds to arrest him.” Is it appropriate for the cops to base probable cause on how easily they are able to disprove self-defense (i.e., prove a negative)? Shouldn’t they first and foremost base probable cause on evidence of a homicide, and then worry about “disproving self-defense” after charges have been brought? I’m not asking this rhetorically. Another way of asking my question is how much should the prosecutor’s job change just because the defendant claims self-defense? If the State always has to prove homicide beyond a reasonable shadow of a doubt, I don’t see why Zimmerman’s claim changes anything. ---
**Author:** ![BlankSlate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blankslate/32/80_2.png) [@BlankSlate](https://boards.straightdope.com/u/BlankSlate)\ **Post date:** [March 16, 2012, 7:58pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/399 "2012-03-16T19:58:08Z")
> [@grude](#): > > There was a similar controversial case in Houston some years back, a neighbor saw two burglers leaving his neighbors house and called 911 and confronted them with a gun and had them lay on the ground at gunpoint. At some point they started rising or approaching the man(or so he claimed) and he shot them and killed them. > > No charges were filed and he was cleared by the grand jury, some claimed racism to be involved as the shooter was white and both burglers were not. > > [Joe Horn shooting controversy - Wikipedia](http://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy) That was a state-sanctioned execution, but the similarity ends there. There is big difference between walking home (too slowly, apparently) from a trip to the store and two grown men committing felony breaking-and-entering. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 16, 2012, 8:04pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/400 "2012-03-16T20:04:42Z")
> [@you\_with\_the\_face](#): > > Is it appropriate for the cops to base probable cause on how easily they are able to disprove self-defense (i.e., prove a negative)? Shouldn’t they first and foremost base probable cause on evidence of a homicide, and then worry about “disproving self-defense” after charges have been brought? I’m not asking this rhetorically. I remember a concealed weapon case here that went to the 6th circuit. IIRC, the person was a courier for a bank/jewelry store and the police who had it in for him, I think it was a 1st AM retaliation civil suit, stopped him and arrested him for possession of a conceaeld weapon. An Affirmative defense was, if charged, that the person was carrying it for a legitimate business reason. The 6th ruled, IIRC, that if the police knew his AD was indeed valid, the PC to arrest vanished? Along the same lines of reasoning in the FL case I suppose, FL law on PC unknown here, but a Homicide is quite different from a concealed weapon charge. [Previous page](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504.md?page=19) [Next page](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504.md?page=21)