"No greater wrong can ever be done than to put a good man at the mercy of a bad, while telling him not to defend himself or his fellows; in no way can the success of evil be made surer or quicker."- Theodore Roosevelt
"The law could not restore life to my dead carcass."- John Locke
Everyone knows generally what self defense is. We should be able to defend ourselves against an attack. And if that means deadly force, so be it. After all, if it’s them or me, I’d rather it be them. But not everyone really takes the time to learn the law. It’s not as simple as one might think.
Like everything else, it seems, the lawyers, judges, and law-makers have made it complicated. Here’s what most people don’t realize. We have a privilege of self-defense, but it’s our burden to prove it.
Let’s look at a typical scenario.
Maybe you have some bad blood with an old street friend. You exchange threats over the years and maybe even a few blows. But nothing really significant. Then one day it goes farther. The old enemy shows up and means business. Real business. He skips the verbal jaw-boning and starts throwing punches. He’s known to carry a pistol, even though he’s got a felony conviction and not allowed to. You see him reach for his waistband. What do you do?
Turns out you have some training. You have legally obtained your concealed firearm permit. And you have a 9 mm in a holster in your pocket.
You pull your weapon. He pulls his. Both start firing at each other. As anyone who has experienced such an event would verify, things happen so fast they seem like slow motion. You act on instinct, and it’s impossible to calculate every move.
You think you shot him when you were at close range, but he keeps shooting back. You run toward your house, taking fire the whole way. You try to fire back, but you are looking for safety. Eventually you make it to your porch. Surely, you think, he will stop now. The neighbors will have called the cops. This has to be over.
But it’s not. He sees you on the porch. You see him directly in front walking at you. He levels his gun. Before you know it, there are bullets wizing by your head. One lodges in your front door frame. Acting on instinct, you fire four quick shots. He drops. But he’s alive. You stop and watch him crawl to his car. He drives off. The threat is over. You later learn that you hit him in the leg, and he died from his wounds.
Now what? That should be self defense. Not so fast. The police start to investigate. There are some witnesses but no one is really consistent. It all happened too fast. The police don’t believe you when you tell them you saw him reach for his waistband (even though everyone agrees he had a gun there). But wait, you say. He started the fight. He came at me. I was minding my own business.
In the meantime, his family starts calling the cops, the news, and everyone else who will listen. The prosecutor decides to take the case to the grand jury. Let them decide. That way they can tell the family it wasn’t their choice. But instead of declining the case, you get indicted for murder.
This is not fiction. This happens. And it can happen to anyone. But it was self-defense. How can this happen?
Here’s what most people don’t know. Self-defense is an “affirmative defense.” That means that you can rely on it, but you have to prove it at trial. You have the burden of proving that you acted in self-defense.
The good news is that your burden is less than the prosecutor’s. Everyone has heard of proof beyond a reasonable doubt. That’s what the prosecutor’s burden is. Yours is less than that—preponderance of the evidence. That means that you only have to prove self-defense by a margin just greater than 50%.
The problem is that these standards become lawyer mumbo-jumbo. They can get lost in the complexity of jury deliberation. And you stand the risk of getting convicted of murder. That’s 15 to life in Ohio, plus 3 more for using a gun. That’s forever.
This is high stakes, folks. And you don’t want to leave this to chance. Get a good trial lawyer. Get someone who knows the law. And get someone you can trust. You could end up defending your life twice. Once on the street, and once in court.
Posted in Criminal Law