Of the 50 states in the US, 49 of them require the State to disprove a defendant’s claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence. Why is Ohio Such an Odd Duck on the Burden of Proof for Self-defense? To understand this curiosity it is necessary to cover a little history and to really understand what is meant by the phrase “burden of proof.” Let’s do them in reverse order.
Most of us know the phrase “burden of proof” from our understanding—borne of movies and TV dramas—that the prosecution bears the burden of proof to prove the defendant guilty beyond a reasonable doubt.
And that’s true. But it also a very superficial understanding of how the law actually allocates the “burden of proof.” So, let’s dig a bit deeper.
The burden of proof actually involves two separate elements. The burden of production, and the burden of persuasion.
The Burden of Production
Much of a court’s function is to act like a gatekeeper in terms of controlling what kinds of evidence and arguments can be brought before a jury. A courtroom without rules would be even more chaotic than the real world outside. In the Zimmerman case we saw a great many bizarre and reversible evidentiary rulings. But this post is focused not on the evidence, but the arguments.
Before a legal argument can be made before the jury it must have some foundation, some rationale for why it is relevant to the case and will help the jury resolve the conflict. This is called the burden of production. The American legal system is an adversarial one by design, however, so to say that an argument requires some foundation, and that one side or the other bears the burden of production, begs the question of which side that might be.
Quite intuitively, it is the party who wishes to introduce a legal argument before the jury that bears the burden of production—that is, of producing enough evidence to justify letting the argument be raised. In the case of a defendant who wishes to argue self-defense, this means that it is the defendant who bears the burden of production on the issue of self-defense.
This doesn’t necessarily mean that the defendant must literally produce evidence of self-defense. Often the evidence necessary to meet the burden of production comes from other sources, even from the prosecution themselves (when the defendant is lucky enough to have an honest prosecution that doesn’t conceal exculpatory evidence).
What it does mean, however, is that if the evidence of self-defense is not produced, from whatever source, it is the defendant wishing to argue self-defense who pays the price—his is denied the opportunity to argue self defense to the jury. Indeed, the jury will not hear the words “self-defense” uttered during the trial.
Fail to Meet the Burden of Production and the Jury WIll Never Hear “Self Defense”
If you’re a law-abiding citizen who legitimately used force in self-defense, this can create an awkward situation. Because you acted in self-defense, you’ve likely admitted to the use of defensive force. So, now the State has a “victim”—the person you used force against—they have a defendant who has confessed to using that force against the “victim”, and pretty much the only legal defense to justify that use of force has been taken off the table because the defendant failed to meet his burden of production.
Oops. Now might be a good time to travel back in time and erase all that prior bad conduct that could be used to impeach you with great effect when you necessarily take the stand to ensure that you meet your burden of production. Oh, you’ve been a good boy? No worries then.
In most cases of legitimate self-defense, however, the facts as gathered by the investigative officers are sufficient to meet the defendant’s burden of production on self-defense without the defendant needing to do more than just sit this part of it out.
The Burden of Persuasion
Once the burden of production has been met, and the issue is properly before the court, a decision must be made on who bears the burden of persuasion—that is, the burden of persuading the finder of fact (usually the jury) of the truth of the proposition.
In terms of the elements of the crime charged we saw that the State bore the burden of producing enough evidence to properly get the matter before the court. The State also bears the burden of persuasion on each and every element of the crime charged, and to the standard of evidence of beyond a reasonable doubt.
This means that if the jurors possess a reasonable doubt as to any single one of the elements of the crime the State loses and the defendant is to be found not guilty. So, in that case the State bears the entirety of the burden of proof—both the burden of production and the burden of persuasion.
The Burden of Persuasion: Affirmative Defenses and Self-Defense
But what about self-defense? Does the defendant similarly retain the burden of persuasion on top of the burden of production?
For much of modern legal history, the answer was, yes. Self-defense was one of a number of legal defenses termed “affirmative defenses.” Affirmative defenses are a different beast than what are called negating defenses. With a negating defense, the defendant argues that an element of the crime has been negated—for example, he was charged with theft of property in excess of $500 value, but in fact the property is worth less than $500.
With an affirmative defense, on the other hand, the defendant essentially concedes that the State can prove every element of the charge beyond a reasonable doubt, but that he should nevertheless not face criminal sanction for his conduct. He is arguing, essentially, that his conduct was justified or privileged despite being nominally illegal.
Classic affirmative defenses that are still treated as affirmative defenses include necessity, coercion, entrapment, insanity, and intoxication.
Affirmative Defense: Necessity
In the case of a necessity defense, you are arguing that the harm caused by your actions is less than the harm that would have resulted but for your actions. It is also necessary that there not have been any alternative less-harmful action that would also have avoided the danger, that the harmful action stopped as soon as the harm to be avoided had passed, and that the harmful action to be stopped was not of your own making. An example of this might be if you were caught speeding, but you were speeding because you were rushing a badly bleeding person to the hospital.
Affirmative Defense: Coercion
In the case of coercion, you are arguing that your harmful actions were not voluntary because of some force being threatened or used against you. As with necessity, however, it is generally expected that the harm you are causing will be less than the coercive harm with which you are being threatened. If an escaping bank robber jumps into your car, puts a gun to your head, and orders you to drive at speeds exceeding the posted limit, your breach of the speed limit may be justified as having been committed under coercion. If, however, he orders you to drive through a crowd of elementary school children, a coercion defense is unlikely to be fruitful.
Affirmative Defense: Entrapment
Entrapment is an affirmative defense in which you admit to having committed the acts charged, but claim that you did so only because you were induced to do so by an agent of the government. For an entrapment defense to work, however, it must be believed that you would not have committed the crime but for that governmental inducement. Merely buying drugs from an undercover police officer will not raise an entrapment defense. Having an undercover agent come to your place of business unsolicited and periodically offer you bribes until you finally accept, however, well might.
Affirmative Defense: Insanity
Insanity as an affirmative defense is well past its heyday, and for good reason—it was being badly misapplied by the courts. Essentially under an insanity defense it must be proven that you did not know that what you were doing was wrong. This does not mean that you did not know killing your neighbors was wrong. It means that when you killed your neighbors you truly believed them to not be human beings at all, but, say, some kind of alien creatures. At this high bar insanity defenses are rarely successful. Unlike the other traditional affirmative defenses, successfully pleading insanity generally does not relieve you of sanctions for your conduct. Instead of being locked in a prison, however, you are likely to be locked in a mental health facility (see, Hinckley, J., still locked in hospital 32 years later).
Affirmative Defense: Intoxication
Intoxication is another affirmative defense that is often sought but rarely achieved. The catch is that it cannot be used as a defense if your intoxication was voluntary. In that case it is deemed that your choice to diminish your cognitive capabilities and you ought to pay the consequences for that choice. Intoxication can be an effective affirmative defense where your intoxication was involuntary or accidental, however.
With Classical Affirmative Defenses, Defendant Bears Burden of Persuasion
What all these affirmative defenses have in common is that it is the defendant who bears the burden of persuasion, as well as the burden of production, on each of them. If claiming necessity, the defendant bears the burden of persuasion on the issue of necessity, by the standard of evidence of a preponderance of the evidence—that is 50%+ a smidge, more likely than not. Similarly if claiming coercion, entrapment, insanity, or (involuntary/accidental) intoxication.
Self Defense as an Affirmative Defense—Kind Of
For much of American history self-defense was treated similarly to the other affirmative defenses. The defendant bore the burden of production, and if successful he also bore the burden of persuasion, by a preponderance of the evidence.
That is, his claimed justification of self-defense would free him of criminal sanction for his use of force against another if he could convince the jury that it was more likely than not that he acted in self-defense. If, on the other hand, he could convince the jury of that by 49%, but no more, self-defense failed and he was convicted for his use of force.
The Shifting Burden of Persuasion
Over the past decades, however, the States began to shift away from this application of self-defense, many of them in just the last 10-15 years. Instead of the defendant bearing the burden of persuasion to prove self-defense by a preponderance of the evidence, they chose instead to shift the burden of persuasion to the State, and require the State to disprove self-defense beyond a reasonable doubt.
Essentially a claim of self-defense properly raised at trial by the defendant meeting his burden of production becomes, in a negative sense, additional element of the crime charged, and (dis)proving it beyond a reasonable doubt then appropriately falls to the State.
This may sound as if it is an arduous task for the State—how do you disprove something? Sounds impossible. In fact, in many cases of claimed self-defense, disproving the claim beyond a reasonable doubt is pretty straightforward.
Many Chops at the Tree: The Numerous Elements of Self-Defense
The legal defense of self-defense is made up of numerous elements, just as a criminal charge is made up of numerous elements. Let’s take as working example a hypothetical “justification of use of deadly force” statute, that states that:
“The use of deadly force against another is justified to prevent a reasonably perceived imminent and otherwise unavoidable threat of death or grave bodily harm to an innocent.”
That statute contains at least five distinct elements, not coincidentally aligned with the Five Principles of the Law of Self-Defense as described in detail in “The Law of Self Defense, 2nd Edition.” They are:
Innocence
Imminence
Proportionality
Avoidance
Reasonableness
In the interests of finishing this blog post sometime this year I won’t dive deep into the details of each—I hear there’s a book on that—but I’ll merely point out that for the State to totally defeat a claim of self-defense they need disprove beyond a reasonable doubt not ALL of these elements, but merely ONE of these elements.
If the defendant was not an innocent victim but rather was the aggressor, boom, self-defense fails. Or if the threat was not imminent, OR the use of defensive force was disproportionate to the threat (e.g., deadly against non-deadly), OR there was a failed duty to retreat, or ANY aspect of the defensive use of force was not both subjectively and objectively reasonable—the defense fails.
Vast Majority of Self-Defense Claims at Trial Fail, For Good Reason
The vast majority of claims of self-defense at trial fail precisely because the evidence is simply overwhelming that one or more of the elements of self-defense does not hold true. In part this is because claims of self-defense that possess a compelling narrative of innocence generally don’t make it to trial. The genuine self-defense case is usually kicked out of the criminal justice machinery before a prosecutor invests the resources and reputation in seeking a conviction. A compelling narrative of innocence is a frightening thing to an honorable prosecutor (so, it’s good to know how to build one).
Where a defendant is obviously weak on one or more elements of self-defense, however, an aggressive prosecutor begins to smell out a compelling argument of guilt, and will react much like sharks do to blood in the water.
So, if a person actually gets to trial and is arguing self-defense it usually means one of two things: (1) they are likely a criminal who is desperate to avoid conviction (aren’t they all?) and are simply throwing up every legal defense they can get their hands on, hoping something sticks, so usually easy for the prosecutor to overcome a BS claim of self-defense (2) they are a well-intentioned law-abiding citizen who genuinely believed they were acting in lawful self-defense, but simply didn’t know the rules of the game and broke one (or more of them)—so, they’re guilty, too, another easy conviction.
Oh, there is of course a third possibility, the “Zimmerman Gambit” in which the State prosecutor chooses to bring to trial for political reasons against a defendant no matter how robust their self-defense claims.
Placing the Burden of Persuasion on the State is the Right Thing To Do
The practical dynamics of having the State bear the burden of persuasion, beyond a reasonable doubt, on self-defense demonstrate that this is the proper approach.
Criminals who are trying to hide behind a false claim of self-defense are readily dispossessed of that shield. Even well intentioned law-abiding people who only accidentally violated the law of self-defense can be readily sanctioned by the State, if it so chooses.
It is only where the claim of self-defense begins to look and feel genuine does the State begin to run into real hardship in getting a conviction. It’s in those cases where there is sufficient evidence in support of each of the five elements of self-defense to raise at least a reasonable doubt about the State’s claim that it has disproven even just one of them, that’s where the State struggles.
And those are precisely the cases the State ought to struggle in their efforts to lock a man in prison for the rest of his life. Those are the cases where the State lacks compelling evidence that the defendant’s use of force was anything other than genuine self-defense, despite all it’s resources and investigators and depositions and forensic evidence and court room theatrics and authority. If those tools are inadequate for the State to meet its burden of persuasion on self-defense, then the defendant rightfully ought to be acquitted.
Except, That Is, for Ohio
Those are the cases in which the defendant ought to be acquitted, that is, with the exception of defendants in Ohio. The Buckeye state remains the last in the country to retain the old model of self-defense as a true affirmative defense, keeping the burden of persuasion for self-defense on the defendant, by a preponderance of the evidence. Simply because it failed to flow, as did every state, with the historical and morally appropriate shift of the burden of persuasion n self-defense to the state. This sad state of affairs makes Ohio a true laggard in properly protecting the due process rights of its residents.
(As a side note, considerable confusion can arise because some of the states that have shifted to place the burden of persuasion on the State continue to refer to their self-defense laws as “affirmative defenses”. This is true only in a historical sense, not in terms of how the self-defense laws are applied and how the burden of persuasion is allocated.)
Expect to See Burden of Persuasion as Emerging Front in Self –Defense Wars
As the law of self-defense has evolved over the last few decades to increasingly favor the law-abiding citizen against the criminal—via the adoption of Stand Your Ground, Make My Day, presumptions of reasonableness, civil and criminal immunity—the political forces that favor the criminal have become disgruntled.
After decades of failed effort trying to strip the law-abiding of the most efficient mechanical means of self-protection—the firearm—they have now begun to turn their resources to engage in an asymmetrical war against self-defense itself.
Sure, you can keep your guns, they concede grudgingly. But you can use it in self-defense only if you first flee from every thug you come across. Sure, carry concealed, but if you ever use that gun in self-defense we’ll exhaust every material asset you own in a criminal prosecution, we’ll do our best to lock you in jail for the rest of your life, we’ll get the Federal justice department on your back, and we’ll sue you civilly for every dime you might have left.
Efforts to re-shift the burden of persuasion back onto the defendant are sure to be one of the most vigorous fronts in this emerging war, just as today we’re seeing attacks launched nationwide against Stand-Your-Ground laws, also the majority legal position across the United States.
Prepare yourselves.
–Andrew, @LawSelfDefense
NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall. For more information, email [email protected].
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Zimmerman received a political show trial. And, not only was the tiral “bizarro” as Mark O’Mara said. The State looked like it was being served by a bunch of doofuses.
What did people learn? To distrust the police. Yes. I think so. To distrust Blacks? By a large margin, yes, I think so.
What was the best thing about the Zimmerman case? Both West and O’Mara deserve kudos. The judge? She’s a jerk, who at best looked and sounded like Chris Farley arose from the dead.
It’s as if we once had a pretty good road. But potholes developed. (Harry Truman once said the most important thing he did when he first entered politics, was to fix the potholes in the road.)
O’Mara’s close was 3 hours long. And, the first 22 minutes eloquently explained how our Founding Fathers “alighted” on the idea of a trial by jury … where you can use West’s joke. Because the people seated are supposed to be ignorant of the defendant. And, also not related to anyone in the courthouse. I found the explanation of why this works, mesmerizing.
Maybe, that’s our only hope? Our Founding Fathers believed in this system.
What stunk the most? And, was the creepiest. Was how Zimmerman’s calling for help was turned into Trayvon screaming and yelling while he punched Zimmerman’s face and body. And, Sybrina, who had nothing to do with her son’s upbringing from the time he was 3! Became the “voice expert” to say “sure” … that was Trayvon.
So, you tell me. When she told Trayvon to get out of her house, did she say it demurely? The TV paints people into unrealistic sights.
Plus, soon, George Zimmerman’s wife goes on trial because she didn’t know the magic number accounting for the donations that strangers sent in through the mail. Where Zimmerman just wanted to make bail, realistically speaking.
For it to work, our LAWS need to be more than word games.
Worst case scenario ahead? Rick Scott wins a second term.
Have you heard this from Bill O’Reilly?
http://www.noquarterusa.net/blog/76174/bully-bill-open-thread/
“O’Reilly made inflammatory comments that shocked and angered many. Geraldo went after O’Reilly. Frankly, I think that O’Reilly’s stat about the murder rate is shocking and indicative of a huge problem in the United States.
Is that stat factual?
Statistics can be stacked to say or hide anything. (Likewise, science and medical research studies and academic and medical science and social science groups can be manipulated for political and financial reasons. Academia, courts, government agencies and lawmakers are more and more basing legislation and policies on political agenda and political correctness.)
However, the majority of gathered statistics do show that:
Although the violent rate has been trending dramatically down over all, African-Americans have had the largest increase and the largest number of homicides percentage-wise within racial groups.
In addition, the CDC reports African-Americans are the racial group with the greatest increase (a dramatic increase) in cases of HIV and other STDs.
Drat – forgot to close link.
The statistics cited are for the first paragraph only.
CDC statistics are available at their website.
Andrew, thank you, a marvelous review. I feel smarter after reading this!
Thanks for the kinds words. All that and more in “The Law of Self Defense, 2nd Edition,” at http://www.lawofselfdefense.com. Use the discount coupon LOSD2-LI to get $5 off and free shipping.
–Andrew, @LawSelfDefense
“…(e.g., deadly against non-deadly), OR there was a failed duty to retreat, or ANY aspect of the defensive use of force was not both subjectively and objectively reasonable—the defense fails.”
Say what ?
What about ‘fear of great bodily harm’ ? Which need not be ‘deadly force’ ?
And, seeing as it is well documented that bare feet or hands or elbows can be deadly, how can a hand holding a marshmallow be ‘not deadly’ ? It’s still a hand.
“A compelling narrative of innocence is a frightening thing to an honorable prosecutor ”
A WHAT ?
The phrase “deadly force,” for purposes of self-defense law, encompasses both force that actually does or can cause death as well as force that does or can cause great bodily harm.
I’m trying to keep the sentences under 500 characters.
–Andrew, @LawSelfDefense
“Fail to Meet the Burden of Production and the Jury WIll Never Hear “Self Defense””
What if my one and only statement to the police is “I was forced to act in self defense, and I don’t want to answer any questions without a lawyer’.
Is that enough to get the magic words in front of the jury ?
It COULD be enough, absent contradictory evidence. But if there are witnesses who saw you chase the guy down the street before you gunned him down, self-defense is going to be a hard sell to the Court no matter how many times you claimed it to police.
The national trend at the trial level is to allow the self-defense claim to be made even if the evidence in support of it is very slight and even contradicted.
But trial courts that DO reject weakly supported self-defense claims are rarely reversed on that basis, as it tends to fall within their discretion.
–Andrew, @LawSelfDefense
Just an aside. George Zimmerman was stopped for speeding. (In Foley, Texas). When asked, he said he wasn’t going anywhere in particular. And, he volunteered that he had a gun in his glove compartment. Cop spent about five minutes just talking to him. And, gave him a “warning” before he was sent on his way again.
I guess we could ask “what’s speeding in Texas?”
But also to notice that though the cop didn’t know who was driving the car he pulled over, he sure did show a lot of grace. Worth noting: Zimmerman is not afraid of the police.
Better Texas than Floriduh.
That wasn’t necessarily THE George Zimmerman – there are 293 George Zimmermans in the USA.
53 in Pennsylvania, 28 in Florida, 26 in New York, 21 in California, 18 in Ohio…and so on.
Not going anywhere in particular. You know, just going where I might run across a family of four trapped in an overturned burning car, say. You never know what might happen when I’m not going anywhere in particular.
It would be interesting to compare and contrast the US on this topic with Britain, which seems to have absolutely rejected self-defense. Very likely American “reformers” of self-defense doctrine have Britain as a model for what they would like to achieve here.
Andrew, another valuable piece. I greatly appreciate the time you take and effort you put into bringing all this information and analyses to us.
Have you heard anything new about the New Orleans case?
Nothing substantive yet, that I hadn’t already reported on.
But the Zimmerman thing was quiet, too, for the first few weeks.
Maybe Sharpton, Benjamin, et al. are still on their celebratory vacations. But they’ll be back, as they always are.
Really, Zimmerman’s acquittal was the best thing that could happen for them, long-term.
Just re-affirms that America is racist, doncha know.
–Andrew, @LawSelfDefense
Gunfire happens so fast, people are trained to do it without thinking. So, sure. After this goes to a courthouse, you need to be sure your lawyer is the one firmly in charge.
Just as in an accident, you want to leave things to your doctor. (Or, as Reagan asked “I hope you’re a republican.”)
But what exactly is most important? Well, that’s surviving the fire fight. If you begin, at first, to worry about your court date, you might not be considering the matter at hand.
Oddly enough, I thought about this because of ENTEBBE. Where the whole firefight took 7 minutes. From the time the Israeli aircrafts landed (To Yoni Netanyahu being shot. Which occurred in the first minute.) To actually killing all the terrorists, and collecting all the hostages.
I put “worrying about what you tell the police” into the same category as I put those Ugandans who had to tell Idi Amin that the hostages “were taken away.” Would they start with “what’s the preponderance?” Or would they argue: “You tell him.” “No, you tell him.” (The law of excuses. Does it give way to honesty, first?)
Oddly enough, I think when people get stunned. Which is what comes in after there’s a firefight (and you’re left alive to talk about it), is to spurt out as much of the event as possible.
The State of Floriduh is not demonstratively different, here, than those Ugandans tasked with telling Idi Amin what happened. Because you just have to wish you have a better audience.
Now. Poor George Zimmerman got trapped by asinine politicians who were appeasing their own Blacks. Who’ve smelled Hispanic blood before, down in Miami. And, could riot like nobody’s business.
But take Dr. Bao. How, exactly, did he handle the “body” of evidence? Nothing from under the nails. Not even a photograph of the knuckles. Which has something to do with “no cameras on the ceiling.” And, Dr. Bao. Who couldn’t remember nothing.
You know what we need? LAWS that toss out cases that get the evidence befouled. Judge Farley Ridiculous Half Nelson, should be removed from the bench! What do you mean a “state” can get away with this? Are we in Uganda?
I bet Idi Amin (as crazy as he was), held people accountable. But not so Rick Scott? Why? Because he has the dough to buy the governor’s mansion? And, a willing press that goes along with this crappy nonsense?
PEOPLE CARRY GUNS FOR A REASON! They’re self protection! And, people need the same training soldiers get. Which includes: Your enemy is within your sight. And, (per Arik Sharon), you give him the first shot … because your ears will help you direct your fire so that you can hit the target. And, not just be shooting away, in the air.
PEOPLE ALSO HAVE GUNS because the cops aren’t fast enough. (I wonder if doughnut shops ever get robbed?)
Mr. Branca,
How does one go about finding an attorney that specializes (in reality, not just saying it in a yellow pages ad) in firearm related self-defense cases. I want to establish a professional relationship before the need, instead of during an emergent situation. Also, is there any type of legal insurance (along the lines of medical insurance) that is realistic. With your post of “exhaust every material asset you own” how does one ever hope to pay for an adequate defense.
Your question is probably the single most frequently asked question I get.
I’m afraid I don’t have a very satisfactory answer for you.
The hard truth is that very few lawyers have any extensive experience in self-defense casea at all, and an even smaller fraction have experience with a REAL self-defense case (as opposed to the 90%+ of self-defense claims that are just criminals throwing every legal defense up against the wall).
Even IF you found the rare attorney who had experience with a genuine self-defense case–how long ago did he have that experience? Last month? Six months ago? Six years ago? Probably a lot more likely the latter than the former. Is he really proficient in self-defense law TODAY when you need him?
Let’s take it a step further. Say I knew a Mark O’Mara in your neck of the woods and could direct you to him. What then? You’re going to just ask him for his card? That doesn’t make you his client. You’re going to pay him a retainer? An honest lawyer won’t take a retainer on the impossibly slight chance that you’ll need him for a self-defense case some unknown number of years in the future, if ever. So you’ll just keep his card in your wallet until, heaven forbid, the need should arise to call him?
But then we get back to exactly the problem I mentioned at the start. Mark O’Mara was brilliant in his defense of Zimmerman. But if you had his card today, and called him 8 years from now when you finally found it necessary to use defensive force, would he still even be in practice? Would he have switched his practice over to family law and away from criminal defense (he does both)?
I’m happy to help connect people with competent self-defense counsel when they have an immediate need. But I tend not to recommend any particular lawyer for people who just have some theoretical potential need in the future.
As for the insurance angle–I am aware that there are groups who offer various kinds of “self-defense liability” insurance. I have not explored these very closely, but what I have seen of them makes me very uncomfortable. There’s a reason insurance companies are so highly regulated by the states–it’s because these entities are so susceptible to abuse.
They collect premiums for months, years, many years, then you need to make a claim–and what happens? Were they genuinely actuarial all those years and ensured they set aside sufficient reserves? How would a “self-defense insurance company” even know how to do that? There are no really good statistics on self-defense (and its 1,000 different flavors) as there are for home fires or hurricanes.
How do they decide if you are “worthy” of having your self-defense legal expenses reimbursed? How would THEY know if you’re worthy before a trial has been conducted and a verdict returned? And if they only reimburse you AFTER the trial has been conducted–well, that’s nice, but you’ve already lost your house and business. Someone else lives in that house, someone else is servicing those clients. They MAY reimburse your legal expenses, they won’t get you your house and business back.
There are many more questions I’d like to see answered before I personally would buy into one of these programs.
I don’t know, as I say I haven’t looked at these pseudo-insurance programs closely. But what I have seen makes me very cautious.
Caveat emptor.
–Andrew, @LawSelfDefense
“The hard truth is that very few lawyers have any extensive experience in self-defense casea at all, and an even smaller fraction have experience with a REAL self-defense case…”
Good reason to buy TWO copies of “The Law of Self Defense.”
Always have a spare for your future attorney if you have to use your firearm in self-defense.
Also – it might be good to make your lawyer a CD with links to Andrew Branca’s website and links to all the articles posted here.
Making your lawyer a DVD of O’Mara’s closing might not be a bad idea either.
MOM does family law AND criminal law??? That spans the spectrum — from the part of law with the most black-and-white to the area of law with 500 shades of gray.
MOM should consult a therapist about the dangers of twisting his mind from one extreme to the other on a regular basis. It could be like bending a coat hanger back and forth repeatedly. After about eight bends in rapid succession, it breaks.
Thank you sir for a elaborated reply.
Actually, I see I neglected to answer your core question. If I were civilian, and my wife/brother/child called me up and said they needed a self-defense attorney, what would I do?
Most places will have a lawyer-specific newspaper for the legal profession, available at law libraries at courthouses and local law schools.
I would start digging through those for the last notable self-defense case I could find, and Identify the counsel. At the very least, the experience should identify for you the best criminal defense talent in the area–and that’s what you really want.
Any really solid criminal defense attorney ought to be able to get up to speed on self-defense, and there’s a LOT more involved in a criminal defense, even in a self-defense case, than merely the law of self-defense.
Of course, in the event they’d like to get up to speed more quickly than not, I’m always available to them for consultation. 🙂
–Andrew, @LawSelfDefense
“If I were civilian”
?
That’s a strange clause. Does it mean a person who is civil, or does it mean non-military?
Let me clarify the “strange clause” for you.
I’m a lawyer. I know a great many skilled criminal defense attorneys. How _I_ would select a defense attorney were I involved in a defensive shooting scenario is much different than would someone who is not an attorney with lots of current connections to the criminal defense bar.
People who do not live within the criminal defense environ, I refer to as “civilians”.
Does that clear it up for you?
–Andrew, @LawSelfDefense
My ex is a cardiologist. He knows the top people in a limited circle. For instance, the top people in Manhattan when he was at a teaching hospital.
When people said they were moving away, and could he recommend a physician for them in the town they were going; this is the advice he gave:
Look around the town where you are picking your house. Look around at the nearby hospitals. If there’s one you find that seems like the best place in town. Go in to it. And, see if you can find the nurse on an ICU unit. She’s going to be the person you ask for a referral. And, the way you ask is to ask “whose your doctor?”
It true most of us have no idea if a lawyer will be good or bad. But I think there are places to go to get excellent referrals. A local policeman may know? Or the captain at the precinct may know? A gun club may know? And, believe it or not you can GOOGLE. Just as you can call the Bar Association in town.
Funny, when I first saw O’Mara i cringed. I wanted George Zimmerman to hire Roy Black! The only other lawyer I think very highly of is Gerry Spence. Which doesn’t help you when you need a lawyer.
O’Mara and West both won me over. Their knowledge of the law was fantastic to watch. What happens when the judge is lousy? I’d want the truth from a lawyer before I walked into the “saloon.”
On the other hand a good lawyer is worth so much! Given that your needs have to do with the papers you sign … that’s the first type of lawyer to look up. (I swear by my accountant, who has a huge practice, these days, in Glendale. And, I’d call his office in a minute if I found myself needing an attorney.)
Mr. Branca,
I was the guy who emailed you about this very issue (along with use of less-than-lethal force) Now I have the article around so I can deal with people that think you have to prove beyond a reasonable doubt that you were defending yourself.
Thank you!
I was also the guy who emailed you saying I bought a copy of your book to celebrate MOM delivering an incredible closing argument. It’s very detailed, but I may still send you a few more questions. Rather think about it now than after I’m in jail.
Sure, I welcome questions, tells me what I need to include in next edition. 🙂
–Andrew, @LawSelfDefense
Have someone proof read the next edition.
“Proofread” is one word, not two. How ironic (and embarassing) is that?
One comment on the Zimmerman investigation. While Dr. Bao was a disaster on the stand, the investigation was otherwise carried out very professionally and very well, until the Corey Clan got involved. What has to be remembered here is that no one, yes I said no one, within the original investigative and prosecutorial circles believed that George Zimmerman did not act in lawful self defense. All, yes I said all, the evidence supported Zimmerman’s account and none, yes I said none, of it supported any other theory or scenario.
There is simply nothing that pone can do to avoid a prosecution which is based solely on political desires and which is not supported by any evidence. In that case the only thing that you can do is retain a good trial attorney and hope for the best.
The Zimmerman trial was tedious. It was tedious because it wasn’t really a legal trial, it was a political show trial.
The whole thing boiled down to Mr. Good’s testimony. TM beating down on GZ, pinned to the ground = obvious self-defense. None of the other evidence was particularly relevant.
The State had no real evidence. O’Mara did a good job of explaining that lack of evidence to the jury.
However if you really need a lawyer you want someone who can obtain an acquittal if you are GUILTY or at least if the evidence is inconclusive on guilt or innocence.
Zimmerman wasn’t criminally culpable.
However, he was lacking in the necessary quantum of, or capacity for, “situational awareness.”
He’s already identified a possible burglar, has phoned it into the police, yet somehow leaves himself vulnerable, at night, to a sneak attack from the prowler.
When attacked, he didn’t have the physical ability to defend himself short of using the gun.
The way to avoid being on trial for homicide in that situation is never put yourself into it, in the first place. “Know your limitations.”
Really?
If Zimmerman is to be believed, he assumed that Martin had left the area via the “back” entrance to the complex, as he could no longer see or hear him. He further stated that Martin approached from behind him and only made his presence known when he [Martin] spoke to Zimmerman. Martin then launched an immediate unprovoked physical attack upon Zimmerman which went on for nearly one whole minute and showed no signs of letting up. Trying to claim that George Zimmerman was responsible because he did not meet some unspecified standard of “situational awareness” or unarmed combat ability is simply ludicrous. The bottom line is that if Trayvon Martin had not engaged in the commission of an unwarranted criminal battery, he would never have been shot by George Zimmerman.
This is just another attempt to swing the blame back onto George Zimmerman for this whole incident. It revives the old “she dressed provocatively so she deserved whatever she got” defense for an unwarranted physical assault. The facts of the matter are that George Zimmerman was the VICTIM of an unlawful, unwarranted violent physical attack that continued to the point where ANYONE would have assumed that if it continued he would have suffered great bodily harm or death. Trayvon Martin was not the victim of any illegal or unwarranted action by George Zimmerman. This old saw urks me as much as the new trend to “explain” martin’s criminal aggression as being linked to the voluntary use of mood altering chemical cocktails, or parental abandonment.
If the criminal justice system was allowed to work as intended, then George Zimmerman would never have been on trial in the first place. The case would have been found to be justifiable homicide without ever going before a jury.
I’m thinking we have been around this bush with Marco100 before, in comments to an earlier post. Same agenda, slightly reworded. The dog barks, and the caravan moves off across the trackless desert, or something like that.
I recall a scene in a movie where Glen Ford’s character is telling a “young gun” that no matter how fast you might be, “there is always someone faster out there…” Yes, it was an old movie, but the concept has not changed a bit.
I don’t care who you are, there’s someone out there who can take you down and make it look easy, and you’re unlikely to be able to identify that person by just looking at them for a minute.
A man isn’t a man because he can woop everyone’s behind. He’s a man because he takes responsibility for himself, his family, his neighborhood, his country, etc. This is what has aggravated me throughout this whole ongoing trial. A man of courage does the right thing even when there’s risk that things could go badly for him–even when things will almost certainly go bad. Zimmerman was aware of his physical vulnerability and took steps try to remedy that, however ineffectively.
It all comes down to duty. Any man who sits in his truck while some stranger is casing his neighborhood is neglecting his duty. If he does it because he’s afraid, whether of physical harm or of legal culpability, then he’s exhibiting cowardice.
It’s time that people stop acting like they’re some jewel-encrusted egg from Faberge and start stepping up like a man and putting themselves into possible harm’s way, even if they’re clearly outmatched.