https://www.gunsamerica.com/blog/fl...our-ground-provision-deemed-unconstitutional/
I'm sure you'll find this interesting.
I'm sure you'll find this interesting.
Really? No one thinks guilty until proven innocent is interesting, controversial? Just plain wrong? Or is it you guys just don't like me??? What a bunch of dicks!!! LOL
Seriously? I figured there would be a lot of convo on this one
Seriously? I figured there would be a lot of convo on this one
Unfortunately activist judges are becoming the norm.
The sensationalist story is somewhat misleading. First you need to understand the very nature of the concept of an affirmative defense.
In any prosecution (civil or criminal), it's up to the accuser to put on a showing of proof of his accusation. Let's take Oklahoma's murder 1 statute, 21 O.S. 701.7, as an example:
A. A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
((B) is the felony murder rule; it's not going to be relevant in a self-defense case).
So...Joe Goblin breaks into your home, has a look at your nine-year-old daughter, and gets that gleam in his eye. You proceed to riddle Mr. Goblin with more bullets than went through the last three John Woo movies. Mr. Persecutor--having graduated from the University of the Left at Wet-bed-opolis--decides that this Simply Will Not Do, and charges you with Murder 1. You plead not guilty, saying that you shot Mr. Goblin because--
STOP RIGHT THERE!
Guess what: Mr. Persecutor has just put on enough evidence to prove his case, insofar as you--the accused himself--just admitted that you filled Mr. Goblin with enough lead to use him for a pencil. Case closed, and I hope you get a cell with a nice view.
This is the nature of an affirmative defense: you admit to the prosecution's accusation, then try to justify it in light of circumstances. You're not guilty until proven innocent, you're innocent until you proved yourself guilty by admitting the accusation...which then shifts the burden of proof to you (as you've now become the accuser) to demonstrate that you meet the elements of the defense (namely, that Joe Goblin needed killin' because he was fixin' to do Very Bad Things to your little girl). If you don't want the burden of proof, don't take an affirmative defense; don't admit to emptying the mag. 'Course, the coroner's report, the ballistics report, the neighbors' testimony to hearing the gunfire, the gun with your fingerprints, the powder residue on your hands, etc. are all going to be evidence that Mr. Persecutor uses to hang you, but you can force him to put on all of that proof without ever admitting that yes, you offered Mr. Goblin a few non-OEM bodily orifices on a take-it-or-take-it basis. But you can do that.
Probably better with the jury you don't, but hey, if that's the way you want to play it, you're free to make that call. Ideally, after you've paid me a very large retainer. In cash.
Second, the story reports, but doesn't really explain well, the finding, or the meaning of the terms or of the case. A pre-trial hearing isn't a trial on the merits; it's more akin to a grand jury, insofar as it's a check on the prosecution by forcing Mr. Persecutor to put on a prima facie case. Basically, it's an attempt to make sure that Mr. Persecutor, if taken at face value, can pass the straight-face test. If he can't, it goes no further; if he can, you go to a trial on the merits with all of the protections of the Constitution in full effect.
Where the story falls down is explaining that. Moreover, it fails to explore the depth of the procedural-vs-substantive distinction. The judicial system protects its independence fairly jealously, and for good reason; if the judiciary were to become fully subordinate to the legislature, it would tear the system of checks and balance apart. The court in this case didn't rule that the defense was unconstitutional; it argued that the legislature's exercise of power to alter the standard was unconstitutional, insofar as that power was vested in the judiciary, not the legislature. In law, the reasoning is often far more important than the ruling. Had the change been instituted by the judiciary, instead of the legislature, this would have gone differently. The legislature could similarly pass a law rule requiring the parties to a case to wear a duck on their heads on Tuesdays and it would be struck down on constitutional grounds, but if the rule were instituted by the judiciary, it would pass muster (waterfowl as headwear being clearly unrelated to any substantive manner, such a rule would be procedural in nature). Yes, a clearly facetious example, but that was to prevent any confounding issues.
Does it make a little more sense now?
In any prosecution (civil or criminal), it's up to the accuser to put on a showing of proof of his accusation. Let's take Oklahoma's murder 1 statute, 21 O.S. 701.7, as an example:
A. A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
((B) is the felony murder rule; it's not going to be relevant in a self-defense case).
So...Joe Goblin breaks into your home, has a look at your nine-year-old daughter, and gets that gleam in his eye. You proceed to riddle Mr. Goblin with more bullets than went through the last three John Woo movies. Mr. Persecutor--having graduated from the University of the Left at Wet-bed-opolis--decides that this Simply Will Not Do, and charges you with Murder 1. You plead not guilty, saying that you shot Mr. Goblin because--
STOP RIGHT THERE!
Guess what: Mr. Persecutor has just put on enough evidence to prove his case, insofar as you--the accused himself--just admitted that you filled Mr. Goblin with enough lead to use him for a pencil. Case closed, and I hope you get a cell with a nice view.
This is the nature of an affirmative defense: you admit to the prosecution's accusation, then try to justify it in light of circumstances. You're not guilty until proven innocent, you're innocent until you proved yourself guilty by admitting the accusation...which then shifts the burden of proof to you (as you've now become the accuser) to demonstrate that you meet the elements of the defense (namely, that Joe Goblin needed killin' because he was fixin' to do Very Bad Things to your little girl). If you don't want the burden of proof, don't take an affirmative defense; don't admit to emptying the mag. 'Course, the coroner's report, the ballistics report, the neighbors' testimony to hearing the gunfire, the gun with your fingerprints, the powder residue on your hands, etc. are all going to be evidence that Mr. Persecutor uses to hang you, but you can force him to put on all of that proof without ever admitting that yes, you offered Mr. Goblin a few non-OEM bodily orifices on a take-it-or-take-it basis. But you can do that.
Probably better with the jury you don't, but hey, if that's the way you want to play it, you're free to make that call. Ideally, after you've paid me a very large retainer. In cash.
Second, the story reports, but doesn't really explain well, the finding, or the meaning of the terms or of the case. A pre-trial hearing isn't a trial on the merits; it's more akin to a grand jury, insofar as it's a check on the prosecution by forcing Mr. Persecutor to put on a prima facie case. Basically, it's an attempt to make sure that Mr. Persecutor, if taken at face value, can pass the straight-face test. If he can't, it goes no further; if he can, you go to a trial on the merits with all of the protections of the Constitution in full effect.
Where the story falls down is explaining that. Moreover, it fails to explore the depth of the procedural-vs-substantive distinction. The judicial system protects its independence fairly jealously, and for good reason; if the judiciary were to become fully subordinate to the legislature, it would tear the system of checks and balance apart. The court in this case didn't rule that the defense was unconstitutional; it argued that the legislature's exercise of power to alter the standard was unconstitutional, insofar as that power was vested in the judiciary, not the legislature. In law, the reasoning is often far more important than the ruling. Had the change been instituted by the judiciary, instead of the legislature, this would have gone differently. The legislature could similarly pass a law rule requiring the parties to a case to wear a duck on their heads on Tuesdays and it would be struck down on constitutional grounds, but if the rule were instituted by the judiciary, it would pass muster (waterfowl as headwear being clearly unrelated to any substantive manner, such a rule would be procedural in nature). Yes, a clearly facetious example, but that was to prevent any confounding issues.
Does it make a little more sense now?
The Judge in this case is wrong. It is up to the prosecution to determine if an offence has occurred in the first place(self defense is not an offense) and a trial warranted. It's no different than in any other situation. The prosecution must prove a driver ran a red light and caused a wreck. It isn't up to the driver to prove he didn't run a red light. It might help during a trial to present exculpatory evidence(alibi, etc.) but it is up to the prosecution to show viable probable cause to bring charges to begin with.
As always, the burden of proof rests upon the state. The law as written only makes that point clear and will reign in overzealous district attorneys. This law will not hinder a righteous prosecution.
Woody
As always, the burden of proof rests upon the state. The law as written only makes that point clear and will reign in overzealous district attorneys. This law will not hinder a righteous prosecution.
Woody
Thanks for breaking down the case in a clear, easy to understand manner, Dave. But I do have a question...
Can said waterfowl be worn with wings spread, or do they have to be in a resting position? That's a very important fashion issue, you know.
Can said waterfowl be worn with wings spread, or do they have to be in a resting position? That's a very important fashion issue, you know.
Honest to God, EVERY armchair lawyer on the planet needs to commit this post to memory. Affirmative defenses and stipulations are NOT something non-professionals should fool around with ... and yet simply by opening their mouths and making the most innocent of statements they find themselves in the tar pit that is our legal system up to their chins, pissed that their lawyer cannot save them from themselves.
Classic example of this -- Jerome Ersland.
Dave's explanation aside. My question is,
1. Why does Florida (what ever jurisdiction it was) pass a Law that states the Prosecutor has the burden proof. I thought prosecutors already had that burden, and........
2. How does a judge say that's unconstitutional.
And yeah, when you open up your mouth to police and prosecutors and give them the ammo they need, well that pretty much meets the prosecutor meeting the burden of guilt.
Maybe I missed something obvious in the article.
The short answer is because judges are human. And in a position of power. Some of them for life.
Constitutionality, believe it or not, is often times argued based on the facts (stipulations) and affirmative defenses of a case. Then the appeals process starts. You can send the exact same case through two different federal circuits and I'd bet you a steak dinner you'd have a good chance of getting a different verdict at the end of that appeals process from each circuit.
That's why lawyers, oftentimes, will BEG their clients to take a plea deal. You just never throw yourself at the mercy of a jury (or worse a judge) unless you absolutely have to. Too, too, too many variables, even when the facts of the cases are exactly the same.
Snip:
OMG NO!!!!!!! You cannot eat steak, unless it is pulverized into slime!!!!!!! Wait @Annie till ya heal a bit more to bet that dinner!!!
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