In May 2012, Marissa Alexander was convicted of aggravated assault for having fired a gun at her estranged husband and his two children. Under Florida’s “10-20-Life” law she received the mandatory 20-year-sentence for having fired a gun in the commission of a felony.

We wrote about the Alexander case here some weeks ago– The Marissa Alexander Case Wasn’t About “Stand-Your-Ground” Either–following increased attention it received in the aftermath of the Zimmerman acquittal.


Marissa Alexander wins new trial on aggravated assault shooting.

Today, Florida’s 1st District Court of Appeals reversed Alexander’s conviction and ordered that she receive a new trial. The court’s basis for this decision is what they characterize as fundamental error in the jury instructions on self-defense given at trial. See Alexander v. State, 1D12-2469 (FL Ct. App. 2013).

Under Florida law, the defense bears the burden of production on self-defense. That is, there must be some minimal evidence in the record to support a claim of self-defense before the issue may be introduced at trial. Where there is insufficient evidence suggesting self-defense, the defendant will not be permitted to argue self defense.

Importantly, the record must possess this minimal degree of evidence to meet the burden of production on all five of the fundamental principles of the law of self-defense. That is, there must be this minimal degree of evidence showing that the defendant was not the aggressor, that the threat defended against was imminent and otherwise unavoidable, that the degree of force used was proportional to the threat faced, that the defendant violated no duty to retreat, and that the defendant’s conduct was reasonable under the circumstances.

If the record fails to provide at least some evidence on any one of these elements, then whatever force was used cannot be justified as self-defense and the defendant will not be permitted to argue self-defense at trial.

In Florida, however, the amount of evidence needed for each of these five principles is very slight, even if contested by more credible or a greater volume of contrary evidence. Florida case law describes the amount of such evidence needed as being only “prima facie” (literally “on it’s face”) or merely enough to show that it is possible that the defendant acted in self-defense. See State v. Rivera, 719 So.2d 335 (Fla. Dist. Ct. App. 2001) and Murray v. State, 937 So.2d 277 (Fla. 4th Dist. 2006).

Under this standard there was never any serious question, in the instant case, that Marissa Alexander would be permitted to argue self-defense at trial, and indeed that was her primary defense to the aggravated assault charge.

In terms of the defendant’s burden of production, Florida law is pretty much consistent with that of the rest of the country (although some states, such as Maryland, tend to require a higher quantity of convincing evidence than is typically required in Florida courts).

Once the defendant has met their burden of production on self-defense, and thereby successfully gotten self-defense introduced as an issue for the trial court to consider, the question then arises as to which party–the defendant or the State–bears the burden of persuasion for convincing the jury on the merits of the defense.

In Florida and 48 other states, the burden of persuasion lies with the State, which bears the burden of disproving self-defense beyond a reasonable doubt. See Monsanky v. State, 33 So.3d 756 (Fla. Dist. Ct. App. 1998).

As a practical matter, of course, this means that the State need merely disprove one of the five principles of self-defense, prove beyond a reasonable doubt that the defendant was the aggressor OR that the threat defended against was not imminent OR that the force used by the defendant was disproportional to the threat OR that the defendant violated a duty to retreat OR that the defendant’s conduct was unreasonable under the circumstances. If they are successful on any one of these, then self-defense has been successfully disproved. (The exception to this is Ohio, in which the defendant retains the burden of persuasion on each element of self-defense by a preponderance of the evidence.)

In between the very slight evidence on each element of self-defense needed for the defendant to meet his burden of production and the considerably greater degree of evidence that the state needs to disprove at least one element of the self-defense beyond a reasonable doubt, Florida also introduces a middle ground in the form of its self-defense immunity statute.

Under this statute, if the defendant can produce not just some slight evidence in support of every element of self-defense but can instead produce a preponderance of evidence in support of every element of self-defense, they are entitled to immunity from criminal prosecution, and even arrest. This determination can be sought at either the pre-trial stage or during the trial itself. See 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

In the instant case, Marissa Alexander successfully met her burden of production and was able to have self-defense introduced at trial as her primary legal defense.

She was unable, however, to show the trial court a preponderance of the evidence in support of each element of self-defense, and was therefore denied immunity and was compelled to continue to trial. (It is noteworthy that the State had offered Alexander a three-year plea agreement, which she declined in favor of taking her chances at the trial which resulted in her 20-year mandatory sentence.)

At trial, the jury found her guilty, implicitly concluding that she had failed to raise a reasonable doubt on even one element of the law of self-defense. It was here, however, that the appellate court concluded a fatal error had taken place in her trial, an error of such fundamental proportions that it required her conviction to be reversed and a new trial to be ordered.

Marissa Alexander at original trial.

Marissa Alexander at original trial.

The error, the appellate court unanimously agreed, was in the trial court’s jury instructions regarding the burden of persuasion on matters of self-defense. As quoted in the appellate decision, the jury was instructed that:

A person is justified in using deadly force if she reasonably believes that such force is necessary to
1. imminent death or great bodily harm to herself or another, or
2. the imminent commission of Aggravated Battery against herself or another.

To prove the crime of Aggravated Battery, the following two elements must be proven beyond a
reasonable doubt. The first element is a definition of battery.
1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will.
2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSA DANIELLE ALEXANDER.

The first part of that instruction is a perfectly correct statement of the Florida law of self-defense, in that one may use deadly force to defend against the imminent commission of an aggravated battery. See FLJI 3.6(f) Justifiable Use of Deadly Force.

The difficulty arises in the context of the section labelled “AGGRAVATED BATTERY.” Specifically, the instruction would seem to suggest that in order for the defendant to avail themselves of the right to use deadly force to defend against the imminent commission of an aggravated battery they are required to “prove the crime of aggravated batter”, and in particular that they must “prove beyond a reasonable doubt” that their attacker “touched or struck” the defendant.

This misstatement introduces multiple errors. First, as discussed above, the burden of persuasion on the issue of self-defense rests solely on the State, not on the defendant. It is the state that must disprove self-defense beyond a reasonable doubt in Florida.

To put it another way, it is not a condition of self-defense under Florida law that the defendant produce evidence beyond a reasonable doubt that they were facing an imminent aggravated battery. Rather, once self-defense has successfully been introduced at trial, the burden shifts to the state to prove beyond a reasonable doubt that the aggravated battery that forms the basis of the self-defense justification did NOT occur.

Finally, one of the elements the instruction improperly places upon the defendant is that there was an intentional touching of the defendant by the victim (the person claimed to be committing the aggravated battery). There is no requirement under the self-defense law of any state, however, that one must wait until one is actually struck or injured before one may act in self-defense. Rather, you can act in self-defense to prevent the imminent striking or harm. Simply put, you need not allow yourself to be shot by your attacker before you can shoot them in self-defense, assuming all the other elements of self-defense are present.

In addition, there was also difficulty with another part of the instruction read to the jury.  Alexander’s claim of self-defense was, of course, a legal defense to the crime with which she was charged, aggravated assault.  The trial court instructed the jury that:


An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which MARISSA DANIELLE ALEXANDER is charged if the injury to Rico Gray Sr. resulted from the justifiable use of deadly force.

This instruction would seem to imply that Alexander’s use of defensive force may be excused as self-defense only if Gray suffered an injury.  In fact, Alexander was charged with aggravated assault rather than aggravated battery precisely because none of the victims of her use of force was actually injured.  Thus, this instruction, on the facts of this case, would seem to strip Alexander of her right to justify her use of force as self-defense from the start.  Clearly this is incorrect.

It seems clear, then, that the reversal of Alexander’s conviction was fair and appropriate, and that justice is best served if she receives a new trial with correct and proper instructions on the law of self-defense.

Having said that, it is important to note that the evidence in support of Alexander’s claim of self-defense was never very great. She failed in her bid for self-defense immunity, indicating that the trial court deemed her to have failed to show a preponderance of the evidence favored her on at least one of the five elements of self-defense (on the issue of retreat). In addition, much of the evidence she introduced in support of her failure to retreat seems incredible on its face.

For example, a key facet of Alexander’s claim of self-defense was that she was forced to confront Mr. Gray and his two young children with a firearm retrieved from the garage because she was unable to exit the garage due to the doors being inoperable.

However, the evening before, Alexander had driven into and parked in that garage, closing the garage door behind her. Further, there was no evidence introduced that the garage doors had ever failed to operate properly before or after the shooting. In addition, Alexander also had clear opportunity to vacate the home through either the front of back doors, neither of which was obstructed.

In addition, Alexander had been required to physically pass by Gray to enter the garage, where she retrieved a pistol and returned to the confrontation. As the trial court wrote in its rejecting of Alexander’s claim of self-defense immunity, “this is inconsistent with a person who is in genuine fear for his or her life.”

Indeed, even though the appellate court ordered Alexander receive a new trial, they unanimously agreed that whatever evidence supported her claim to self-defense remained below that of a preponderance of the evidence, as they affirmed the trial court’s rejection of Alexander’s claim for self-defense immunity. Such immunity will therefore not be available for Alexander on her re-trial, as a matter of law.

In addition, the fact that it took the jury a mere 12 minutes to convict her at trial of the aggravated assault charge would suggest they did not see even a close call on the issue of self-defense. To what degree such a rapidity of conviction can be attributed to the incorrect jury instruction is, of course, hard to say.

Finally, it is worth noting that the Alexander case has been awash with much of the disinformation of the type that characterized the Zimmerman trial, and has become a target for very similar efforts of political and racial activism.

In hindsight of the conviction, Alexander might well have wondered whether it would have been more prudent for her to accept the three-year plea deal offered her rather than proceed to the trial that resulted in her 20-year sentence. It remains to be seen whether the State, facing the prospect of a re-trial and the political pressures now certain to accompany such a trial, will be able or willing to re-engage Alexander in a plea agreement she may now be more likely to view favorably.

–Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.

Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.


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