Yesterday, on the 4th anniversary of the self-defense shooting of Trayvon Martin, we wrote about Florida’s just enacted changes to its “10-20-Life” mandatory minimum sentencing law in the context of aggravated assault and self-defense.

There is also another substantive change to the state’s self-defense law that is advancing through the Florida legislature:  a reduction in the threshold for obtaining criminal and civil self-defense immunity.

More specifically, the Florida senate has approved a change to the state’s self-defense immunity law that would require state prosecutors to disprove self-defense by clear and convincing evidence in order to deny a defendant immunity from prosecution (and civil suit).

Although this change to self-defense immunity is not yet law, it has been modified from a less tenable version such that its prospects for becoming law are much improved.  Let’s take a look at the specifics of this proposed change.

Florida State Senate Lowers Threshold For Obtaining Self-Defense Immunity

The Florida senate has approved a change to the state’s self-defense immunity law such that instead of a defendant having to prove self-defense by a preponderance of the evidence, as is currently the law, state prosecutors would have to disprove self-defense by clear and convincing evidence.

Earlier versions of this change would have required prosecutors to disprove self-defense beyond a reasonable doubt at a pre-trial hearing.  I have opined previously here at Legal Insurrection that such a drastic change in the standard of evidence would likely have resulted in a great many dangerous criminals escaping punishment simply by uttering the words “self-defense immunity.”  This outcome seems inevitable if one mandates that the state be able to disprove self-defense beyond a reasonable doubt at a pre-trial hearing.

Perhaps for these reasons that effort failed, as we covered here at Legal Insurrection: Florida Effort to Change Burden on Self-Defense Immunity Fails. The follow-up to that failure has apparently been for the Florida legislature to again attempt to lower the threshold for obtaining self-defense immunity, but by a lesser degree.  Instead of requiring prosecutors to disprove self-defense by the very high standard of proof beyond a reasonable doubt, they would not have to disprove self-defense by the reduced standard of clear and convincing evidence.

It is perhaps worth describing these different standards of evidence in more detail.

“By a preponderance of the evidence” simply means by a majority or the greater share of the evidence, 50% plus a hair of the evidence. Imagine the issue as a balance beam, and the evidence required as being just enough to tip the beam in one direction or the other.

(Note that as a consequence there is usually little substantive difference between requiring the defendant to prove self-defense by a preponderance of the evidence on the one hand and requiring the state to disprove self-defense by the same standard–each side needs 50%+ of the evidence to win on the issue.)

“Beyond a reasonable doubt” has no neat mathematical figure, and courts are often loath to define the phrase other than by simply stating the words “beyond a reasonable doubt,” which seems unhelpful.  It does, however, represent a very high threshold of evidence, indeed.

Florida criminal jury instruction 3.7 Plea of Not Guilty; Reasonable Doubt; and Burden of Proof provides the following definition of “reasonable doubt”:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

“Clear and convincing evidence” falls somewhere in between the two just-described standards of evidence; it is greater evidence than a mere preponderance, but not as great as required for proof beyond a reasonable doubt.  Florida’s aptly named civil jury instruction 405.4 Clear and Convincing Evidence provides the following definition:

“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.

The effect of this change is that it will be easier for defendant’s to successfully argue that they qualify for criminal and civil self-defense immunity under Florida law than is the case under the current “by a preponderance of the evidence standard.”  Currently, prosecutors needed to convince a judge by a preponderance of the evidence that a defendant had not acted in lawful self-defense in order to deny that defendant immunity.  Should this change be adopted into law, prosecutors would need to convince a judge of the same to the higher standard of “clear and convincing evidence” (but not to the still higher standard of “beyond a reasonable doubt”).

As a practical matter this will mean that more people will qualify for self-defense immunity (or simply not be prosecuted at all, given the greater ease with which prosecutors will know they can qualify for self-defense immunity).  The pool of people who benefit will surely include many who were acting in the good-faith belief that their use of force was lawful self-defense.

It will also, of course, also include many criminal actors who are simply seeking to escape appropriate legal sanction through the protection afforded by the state’s self-defense immunity law.  Where the appropriate balance lies there, I leave to the judgment of the Florida legislature and the body politic that elects them.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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