This past Wednesday the Ohio House voted by a 64 to 26 margin to pass HB 228, which seeks to bring Ohio self-defense law into the modern era. It is believed by advocates of this legal advance that the Senate version of the bill will pass that chamber easily, and with sufficient votes to overcome a promised veto by Ohio Governor John Kasich (R).
Although the bill makes several changes to Ohio self-defense and gun law, the changes of most interest in the context of self-defense involve changes to the burden of persuasion on a legal claim of self-defense and the adoption of a “hard” stand-your-ground provision.
Although we’re all familiar with the phrase “burden of proof,” fewer realize there are actually two such burdens: the burden of production and the burden of persuasion.
The burden of production has to do with the minimal amount of evidence required before a legal argument can be made in court—if there is zero evidence to support a legal argument there’s no point presenting it to the jury. On the legal defense of self-defense the burden of production is on the defendant claiming self-defense. This is rarely a difficult burden for a defendant in a “good guy” case of self-defense (the small minority of self-defense claims).
Once the burden of production has been met on the legal defense of self-defense the question is then which party bears the burden of persuasion—that is, whose job is it to convince the jury of the truth or untruth of the self-defense claim. Further, by what legal standard or threshold is that proof to be made.
Considering the matter generally, the burden of persuasion could theoretically be placed on either the defendant or the prosecution. The standard of evidence can separately be set at any of a variety used by the courts: preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt, and so forth.
In 49 states it is the prosecution who bears the burden of persuasion on self-defense, and who must disprove the claim of self-defense beyond a reasonable doubt.
It used to be fairly common across the United States that the burden of persuasion for self-defense was placed on the defendant, who must prove self-defense by a preponderance of the evidence. Over the last several decades, however, every state has abandoned this approach and instead decided to make self-defense effectively a negative element of the crime charged, and adopted the burden described in the prior paragraph.
Every state, that is, except for Ohio, which is the last state to still place the burden of persuasion on self-defense on the defendant and by a preponderance of the evidence. It is this outdated legacy of self-defense law that is one of the primary targets for HB 228. Should the bill become law, Ohio will finally join the other 49 states in placing the burden of persuasion on self-defense on the prosecution to disprove self-defense beyond a reasonable doubt.
Not surprisingly, this change is vigorously opposed by both prosecutors and law enforcement in Ohio because it shifts strength of legal position from their hands to those of the defense.
Properly understood, “stand-your-ground” laws merely relieve law-abiding innocent victims of a violent attack of a duty to attempt to retreat before they can use defensive force to protect themselves, their family, and other innocent persons from that attack.
The phrase “stand-your-ground” has been politicized to such a degree that rational discussion of the doctrine is almost impossible to find, and it has been made to appear as if “stand-your-ground” were some aberrant legal doctrine in place in only a few presumably racist states.
In fact, the large majority of about 36 states qualify as “stand-your-ground” states in that they do not impose a legal duty to retreat before acting in otherwise lawful self-defense. About half of these states adopted “stand-your-ground” through statute, and about half have long been “stand-your-ground” states on the basis of common and/or case law.
If HB 228 becomes law, Ohio would become the 37th state to qualify as a “stand-your-ground” state. I would note that Ohio would be the seventh state to shift from the outdated “duty-to-retreat” doctrine to the modern “stand-your-ground” doctrine since the famous trial of George Zimmerman made “stand-your-ground” a household name (despite the fact that the Zimmerman trial had nothing whatever to do with the “stand-your-ground” doctrine). No state has moved in the other direction, from “stand-your-ground” to “duty-to-retreat.”
But that’s not all. Even among “stand-your-ground” states there are really two “flavors” of the doctrine. About 30 of the “stand-your-ground” states are what I refer to as “soft stand-your-ground” states. The prosecutor can’t argue that the defendant had a legal duty to retreat, because no such duty exists. The prosecutor can, however, argue that the defendant could have safely retreated, and a reasonable person would have, and therefore the defendant’s failure to safely retreat was unreasonable.
Reasonableness is a requirement of lawful self-defense, and a defendant who acts unreasonably does not qualify. This argument is thus a way for a prosecutor to attack a defendant’s failure to retreat on the self-defense element of reasonableness rather than on the self-defense element of avoidance (which “stand-your-ground” takes off the table).
In about a half-dozen of the 36 “stand-your-ground” states, however, the statutory provision for “stand-your-ground” explicitly provides that the finder of fact (usually the jury, unless the judge in a bench trial) may not consider the issue of retreat in evaluating the defendant’s claim of self-defense. This is what I refer to as the “hard stand-your-ground” flavor of this legal doctrine, as it more or less entirely takes the issue of retreat off the table for an otherwise innocent defendant.
Precisely this “hard stand-your-ground” statutory language is included in HB 228, and thus if the bill becomes law, Ohio will become not just the 37th “stand-your-ground” state but also the seventh “hard stand-your-ground” state.
For more information and details on HB 228, you can take a look at the legislative analysis of the bill prepared by the Ohio Legislative Service Commission, as well as the actual language of the bill itself.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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