Today is the third day of deliberations in the murder/manslaughter trial of police officer Ray Tensing, and this afternoon Judge Megan Shanahan once again sent the jury back to deliberations after they told her that they were still unable to arrive at a unanimous verdict.

Ray Tensing, you may recall, is the Univesity of Cincinnati police officer who shot and killed black motorist Sam DuBose when the driver attempted to flee a traffic stop after refusing to show the officer a driver’s license.  The events were captured in a rather shaky maneer on Tensing’s bodycam, as we covered way back in July of 2015: Sam DuBose Shooting: Let’s Go to the Video Tape.

We obviously don’t yet know what the verdict, if any, will be, and I’m not here to address the merits of the case again–although it doesn’t appear that my assessment in the July 2015 post is subject to any real change.

Rather, I’m writing to note that had this trial been taking place in any state other than Ohio, Officer Tensing would already almost certianly have been acquitted, or at the very least be even further from a conviction than he is with this current Ohio jury.  The only reason for this is because the trial is taking place in Ohio, and Ohio is the last state to retain a very arcane burden of proof in self-defense cases.

Tensing is charged with murder (and the lesser included charge of voluntary manslaughter, murder under adequate provocation).  Both are intentional killing offenses.

Tensing’s defense centers on self-defense, essentially: yes, I shot Sam Dubose and I did so deliberately, but I did so in necessary defense of my life.  In this case Tensing specifically argues that DuBose was using his vehicle as a weapon to threaten Tensing with imminent death or grave bodily harm, the degree of threat required to justify Tensing’s shooting of DuBose.

Given that Tensing is charged with a deliberate killing offense and that he has raised the legal defense of self-defense, the question naturally arises:  who has the burden of proving/disproving self-defense, and by what standard of proof (amount of evidence)?

In forty-nine states, all but Ohio, once a defendant has raised the legal defense of self-defense it becomes the responsibility of the prosecution to disprove self-defense beyond a reasonable doubt. There’s not accepted mathematical figure for how much evidence constitutes “beyond a reasonable doubt,” but it is an overwhelming majority of the evidence. For purposes of illustration let’s pretend it means 90% of the evidence.  So to defeat self-defense in 49 states, the prosecution must come up with 90% of the evidence in its favor.

In Ohio, on the other hand, once a defendant has raised the legal defense of self-defense it remains the defendant’s obligation to prove self-defense by a preponderance of the evidence.  For purposes of illustration, let’s pretend that means simply 51% of the evidence.  Of course, as a practical matter if the defense must prove self-defense by 51%, that’s just another way of saying the prosecution needs to disprove self-defense by 50%–just enough to deny the defense it’s 51%.   If the prosecution can disprove self-defense by even 50% of the evidence they’ve prevented the defense from meeting it’s obligation, and the claim of self-defense fails.

The fact that the Ohio jury in the Tensing trial has not yet come to a verdict means that there is at least one jury who does not believe that the prosecution has disproved Tensing’s claim of self-defense by 50%–if they did believe the prosecution had done so, then self-defense would have failed, and given that Tensing necessarily admitted to deliberately shooting DuBose there is no rational basis on which to find him other than guilty of either murder or manslaughter.

It naturally follows that if the jury believes that the prosecution has failed to disprove self-defense by a mere 50%, it’s obvious that they must necessarily believe the the prosecution has also failed to disprove self-defense by 90%, the hypothetical standard in every other state.  In other words, if a prosecutor can’t defeat a claim of self-defense in Ohio he is a vast distance away from being able to disprove self-defense in any other jurisdiction.

Thus, the fact that these Ohio prosecutors have failed, after a complete trial and a full three days of jury deliberations, to disprove Tensing’s claim of self-defense to the legal standard required in that state, they would necessarily be even further away–arguably, hopelessly away–from being able to disprove Tensing’s claim of self-defense in any other state.

More briefly: it is almost certainly the case that Tensing remains in legal jeopardy in this trial only because of the arcane self-defense burden-of-proof requirements of that lone hold-out state, Ohio.

–-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 books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
“Law of Self Defense, 3rd Ed.” /Seminars / Instructor Program / Twitter /Facebook / Youtube