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.

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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 seminar@lawofselfdefense.com.

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.