When you are the defendant in a criminal matter, the burden of proof always lies with the state. There are circumstances of which a defendant must prove to give rise to a defense.
George and Trayvon are back in the news again
- Thread starter Sam Fisher
- Start date
When you are the defendant in a criminal matter, the burden of proof always lies with the state. There are circumstances of which a defendant must prove to give rise to a defense.
Sam Fisher
Banned
I'm curious.. for those in here who feel sorry for Trayvon, and want George to get the book thrown at him, I wonder if you would feel sorry for the thug in this video?
Sam Fisher
Banned
Back to the upcoming trial....
Zimmerman Case: The Five Principles of the Law of Self Defense
by Andrew Branca
As we enjoy today’s pause in the courtroom action of the Zimmerman trial it might be a nice time to do a quick overview of how the law of self defense will be fought over at trial.
Florida Self-Defense Statutes Most Relevant to the Zimmerman Trial.
Florida has a number of specific statutes relevant to self defense (not all states do, relying instead on case law), the most central of which for this trial will be: 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm.
Also, FL 782.02. Justifiable use of deadly force
It seems likely that given the facts of the case the prosecution will also try to apply Florida’s aggressor statute: 776.041. Use of force by aggressor.
Finally, I expect we’ll also see the defense raise Florida’s immunity statute at trial: 776.032. Immunity from criminal prosecution and civil action for justifiable use of force.
The Criminal Charge Against Zimmerman
The above listed self-defense related statutes will find application in establishing Zimmerman’s affirmative defense of self-defense. We do not even get to that point, however, unless the State has managed to prove each and every element, beyond a reasonable doubt, of the crime with which Zimmerman has been charged.
The formal charge against Zimmerman is murder in the second degree: 782.04. Murder.
In Florida (as in most states) manslaughter is a lesser included offense of murder, and so the jury will also be read the manslaughter charge as a matter of course. 782.02. Manslaughter.
Details matter when dealing with statutes, and we’ll be delving into those details in the coming days and (perhaps) weeks of the trial. Before getting enmeshed in minutiae, however, I thought it might be productive to establish a general framework of the law of self defense generally, a of 30,000-foot point of view to put everybody on the same piece of landscape in preparation for the start of the trial. These five principles apply generally the the laws of self defense everywhere in the United States (although their specific application does, of course, vary in different jurisdictions.)
The Five Principles of the Law of Self-Defense
American society recognizes that there are certain circumstances in which the use of force, even deadly force, against another person may be necessary and justified. When this is so, the use of that force is deemed not a crime, and even if the state can prove beyond a reasonable doubt each and every element of, say, murder, the fact that the act was done in lawful self-defense requires an acquittal.
This is, really, a remarkable degree of autonomous power held by the individual citizen. A person who reasonably believes that they are being threatened with imminent and otherwise unavoidable death or grave bodily harm may in that instant take the life of their attacker, with absolutely no requirement for prior permission from any governmental authority. In contrast, think about how long it usually takes the government to execute someone who has been proven guilty of a capital crime with all due process of law.
Where the government does enter the picture in a self-defense scenario, of course, is after the fact. Examining events in hindsight they seek to determine whether the use of force did, in fact, adhere to all five legal principles of self-defense. If they can prove, beyond a reasonable doubt, that any single one of those principles has been violated, the defendant’s right to claim self defense disappears.
That said, let’s briefly discuss each of the five principles of the law of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
For the State to win on the issue of self-defense in the Zimmerman case it must prove, busing the facts in evidence and beyond a reasonable doubt. one or more of these fundamental principles to be false.
Innocence—Aggressors Need Not Apply
The principle of Innocence refers to the notion that a person who initiates a conflict should not later be permitted to justify his use of force as self defense. It is this principle that is captured in Florida statute 776.041. It is, however, possible for the initial aggressor of a conflict to regain his “innocence” under certain circumstances., and thereby regain his right to justifiably use force in self defense
What I expect we will see at trial with regard to the principle of Innocence is the State arguing that Zimmerman engaged in conduct of a nature sufficient to qualify as “aggression”. The defense will respond that nothing Zimmerman did could reasonably qualify as an act of “aggression,” and at the same time that even if he did engage in such conduct he nevertheless “regained his innocence” afterwards.
Imminence—Right NOW!
The principle of Imminence refers to the notion that you can defend yourself with force only against a threatened danger that is about to happen RIGHT NOW. You can’t use force to prevent a danger that may arise at some later time—the law expects you to seek an alternative resolution in the mean time, such as calling the police–nor may you use force in response to a danger that has already occurred or passed—doing so would be retaliation, not self defense.
The principle of Imminence may come into play around the arguments that Zimmerman was the initial aggressor, in that his observation/following of Martin would create in a reasonable person’s mind (in this case, Martin) a fear of imminent harm. The defense will, naturally, argue the contrary.
Proportionality—The “Goldilocks” Principle (Just Right)
The principle of Proportionality refers to the notion that the degree of force you may use in self-defense must be proportional to the degree of force with which you are threatened. Briefly, a non-deadly threat may only be countered with a non-deadly defense. A threat capable of causing death or grave bodily harm (e.g., a broken bone, blinding, a rape) may be met with deadly force.
Usually, the use of deadly force against an unarmed attacker is fatal to a claim of self defense. If you nevertheless wants to argue self defense you will have to convince the court that the unique circumstances warranted your use of deadly force despite the fact that the attacker was unarmed.
In many states, the fact that the attack occurred in the defendant’s home often raises a legal presumption of a threat of death or grave bodily harm (e.g., the so-called “make-my-day” laws). That, of course, is not relevant in the Zimmerman case. In all states, however, if the unarmed attack is of such ferocity that it nevertheless raises a reasonable fear of death or grave bodily harm, the use of deadly force in self defense would be justified.
Much has been made in the public narrative about the fact that Zimmerman shot and killed an unarmed Martin. For Zimmerman to be successful in arguing self defense as a legal justification for the shooting he will need to present the court with a compelling narrative of his own recounting his reasonable fear of death or grave bodily harm. The success of Zimmerman’s narrative will surely be a function of the unremitting nature of Martin’s attack—straddling the prone Zimmerman and punching him “MMA-style” even after Zimmerman was clearly no longer any apparent threat and was, by eye-witness account, screaming for help—and the extensiveness of Zimmerman’s injuries as evidenced by medical reports and contemporaneous photos.
Avoidance—A Duty to Retreat as Long as Safely Possible
The principle of Avoidance refers to the notion that you should not use force in self-defense if you can avoid the need to do so by making use of a safe avenue of retreat.
Florida is, of course, a “stand your ground” state (776.013(3)), where a person acting in justifiable self defense has no general duty to retreat before doing so. This does not, however, take the principle of Avoidance out of this trial.
As previously mentioned, it is is possible that the State will argue that Zimmerman was the initial aggressor. As the aggressor he would not be eligible to argue self-defense unless he first “recovered his innocence.” A condition to “recovering innocence” is that you have “exhausted every reasonable means to escape” or that you “withdraw from physical contact with the assailant.” (An alternative means of “recovering” innocence comes into play when the aggressor’s non-deadly attack is countered by a deadly-force attack.)
In this way the principle of Avoidance and a legal duty to retreat can arise even in a Stand Your Ground state, like Florida, which has no general duty to retreat before using force in self-defense.
Reasonableness—Meet the “Reasonable and Prudent Man”
The principle of Reasonableness is really an umbrella principle that applies to each of the previous four. The issue here is whether your perceptions and conduct in self-defense were those of a reasonable and prudent person under the same or similar circumstances. If they were not, any claim to self-defense fails.
So, if you believed the other person was an aggressor, but a reasonable person would not have believed this, you did not act in lawful self-defense. Similarly if you believed that the threat was imminent but a reasonable person would not have, or that the force you used was proportional to the threat but a reasonable person would not have, or that you could not have avoided the threat but a reasonable person would have . . . in each case the claim to self defense fails.
It is within the contours of the principle of Reasonableness that the attacker’s prior acts and/or reputation might be made relevant at trial, even if they were unknown to you at the time. The reasonableness of your perception that the attacker’s behavior was threatening would be buttressed if your attacker had a reputation in the community for behaving in threatening manner. Similarly, the reasonableness of your perception that the attacker was acting in an irrational and frightening manner would be buttressed if your attacker habitually used intoxicants, and was in fact intoxicated at the time of the attack.
Wrap-Up
So, those are the five principles of the law of self-defense in a nutshell. Obviously, a ton of detail has been left out, so take it for what it is, a concise overview. Hopefully, this can serve as a useful conceptual framework and context into which we can place the specifics of Florida law and the particular facts of this case in the days to come.
Andrew F. Branca is a MA lawyer with a long-standing interest in the law of self defense. He authored the seminal book “The Law of Self Defense” (second edition shipping June 22–save 30% and pre-order TODAY!), and manages the Law of Self Defense web site and blog. Many thanks to the Professor for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!
http://legalinsurrection.com/2013/06/zimmerman-case-the-five-principles-of-the-law-of-self-defense/
Zimmerman Case: The Five Principles of the Law of Self Defense
by Andrew Branca
As we enjoy today’s pause in the courtroom action of the Zimmerman trial it might be a nice time to do a quick overview of how the law of self defense will be fought over at trial.
Florida Self-Defense Statutes Most Relevant to the Zimmerman Trial.
Florida has a number of specific statutes relevant to self defense (not all states do, relying instead on case law), the most central of which for this trial will be: 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm.
Also, FL 782.02. Justifiable use of deadly force
It seems likely that given the facts of the case the prosecution will also try to apply Florida’s aggressor statute: 776.041. Use of force by aggressor.
Finally, I expect we’ll also see the defense raise Florida’s immunity statute at trial: 776.032. Immunity from criminal prosecution and civil action for justifiable use of force.
The Criminal Charge Against Zimmerman
The above listed self-defense related statutes will find application in establishing Zimmerman’s affirmative defense of self-defense. We do not even get to that point, however, unless the State has managed to prove each and every element, beyond a reasonable doubt, of the crime with which Zimmerman has been charged.
The formal charge against Zimmerman is murder in the second degree: 782.04. Murder.
In Florida (as in most states) manslaughter is a lesser included offense of murder, and so the jury will also be read the manslaughter charge as a matter of course. 782.02. Manslaughter.
Details matter when dealing with statutes, and we’ll be delving into those details in the coming days and (perhaps) weeks of the trial. Before getting enmeshed in minutiae, however, I thought it might be productive to establish a general framework of the law of self defense generally, a of 30,000-foot point of view to put everybody on the same piece of landscape in preparation for the start of the trial. These five principles apply generally the the laws of self defense everywhere in the United States (although their specific application does, of course, vary in different jurisdictions.)
The Five Principles of the Law of Self-Defense
American society recognizes that there are certain circumstances in which the use of force, even deadly force, against another person may be necessary and justified. When this is so, the use of that force is deemed not a crime, and even if the state can prove beyond a reasonable doubt each and every element of, say, murder, the fact that the act was done in lawful self-defense requires an acquittal.
This is, really, a remarkable degree of autonomous power held by the individual citizen. A person who reasonably believes that they are being threatened with imminent and otherwise unavoidable death or grave bodily harm may in that instant take the life of their attacker, with absolutely no requirement for prior permission from any governmental authority. In contrast, think about how long it usually takes the government to execute someone who has been proven guilty of a capital crime with all due process of law.
Where the government does enter the picture in a self-defense scenario, of course, is after the fact. Examining events in hindsight they seek to determine whether the use of force did, in fact, adhere to all five legal principles of self-defense. If they can prove, beyond a reasonable doubt, that any single one of those principles has been violated, the defendant’s right to claim self defense disappears.
That said, let’s briefly discuss each of the five principles of the law of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
For the State to win on the issue of self-defense in the Zimmerman case it must prove, busing the facts in evidence and beyond a reasonable doubt. one or more of these fundamental principles to be false.
Innocence—Aggressors Need Not Apply
The principle of Innocence refers to the notion that a person who initiates a conflict should not later be permitted to justify his use of force as self defense. It is this principle that is captured in Florida statute 776.041. It is, however, possible for the initial aggressor of a conflict to regain his “innocence” under certain circumstances., and thereby regain his right to justifiably use force in self defense
What I expect we will see at trial with regard to the principle of Innocence is the State arguing that Zimmerman engaged in conduct of a nature sufficient to qualify as “aggression”. The defense will respond that nothing Zimmerman did could reasonably qualify as an act of “aggression,” and at the same time that even if he did engage in such conduct he nevertheless “regained his innocence” afterwards.
Imminence—Right NOW!
The principle of Imminence refers to the notion that you can defend yourself with force only against a threatened danger that is about to happen RIGHT NOW. You can’t use force to prevent a danger that may arise at some later time—the law expects you to seek an alternative resolution in the mean time, such as calling the police–nor may you use force in response to a danger that has already occurred or passed—doing so would be retaliation, not self defense.
The principle of Imminence may come into play around the arguments that Zimmerman was the initial aggressor, in that his observation/following of Martin would create in a reasonable person’s mind (in this case, Martin) a fear of imminent harm. The defense will, naturally, argue the contrary.
Proportionality—The “Goldilocks” Principle (Just Right)
The principle of Proportionality refers to the notion that the degree of force you may use in self-defense must be proportional to the degree of force with which you are threatened. Briefly, a non-deadly threat may only be countered with a non-deadly defense. A threat capable of causing death or grave bodily harm (e.g., a broken bone, blinding, a rape) may be met with deadly force.
Usually, the use of deadly force against an unarmed attacker is fatal to a claim of self defense. If you nevertheless wants to argue self defense you will have to convince the court that the unique circumstances warranted your use of deadly force despite the fact that the attacker was unarmed.
In many states, the fact that the attack occurred in the defendant’s home often raises a legal presumption of a threat of death or grave bodily harm (e.g., the so-called “make-my-day” laws). That, of course, is not relevant in the Zimmerman case. In all states, however, if the unarmed attack is of such ferocity that it nevertheless raises a reasonable fear of death or grave bodily harm, the use of deadly force in self defense would be justified.
Much has been made in the public narrative about the fact that Zimmerman shot and killed an unarmed Martin. For Zimmerman to be successful in arguing self defense as a legal justification for the shooting he will need to present the court with a compelling narrative of his own recounting his reasonable fear of death or grave bodily harm. The success of Zimmerman’s narrative will surely be a function of the unremitting nature of Martin’s attack—straddling the prone Zimmerman and punching him “MMA-style” even after Zimmerman was clearly no longer any apparent threat and was, by eye-witness account, screaming for help—and the extensiveness of Zimmerman’s injuries as evidenced by medical reports and contemporaneous photos.
Avoidance—A Duty to Retreat as Long as Safely Possible
The principle of Avoidance refers to the notion that you should not use force in self-defense if you can avoid the need to do so by making use of a safe avenue of retreat.
Florida is, of course, a “stand your ground” state (776.013(3)), where a person acting in justifiable self defense has no general duty to retreat before doing so. This does not, however, take the principle of Avoidance out of this trial.
As previously mentioned, it is is possible that the State will argue that Zimmerman was the initial aggressor. As the aggressor he would not be eligible to argue self-defense unless he first “recovered his innocence.” A condition to “recovering innocence” is that you have “exhausted every reasonable means to escape” or that you “withdraw from physical contact with the assailant.” (An alternative means of “recovering” innocence comes into play when the aggressor’s non-deadly attack is countered by a deadly-force attack.)
In this way the principle of Avoidance and a legal duty to retreat can arise even in a Stand Your Ground state, like Florida, which has no general duty to retreat before using force in self-defense.
Reasonableness—Meet the “Reasonable and Prudent Man”
The principle of Reasonableness is really an umbrella principle that applies to each of the previous four. The issue here is whether your perceptions and conduct in self-defense were those of a reasonable and prudent person under the same or similar circumstances. If they were not, any claim to self-defense fails.
So, if you believed the other person was an aggressor, but a reasonable person would not have believed this, you did not act in lawful self-defense. Similarly if you believed that the threat was imminent but a reasonable person would not have, or that the force you used was proportional to the threat but a reasonable person would not have, or that you could not have avoided the threat but a reasonable person would have . . . in each case the claim to self defense fails.
It is within the contours of the principle of Reasonableness that the attacker’s prior acts and/or reputation might be made relevant at trial, even if they were unknown to you at the time. The reasonableness of your perception that the attacker’s behavior was threatening would be buttressed if your attacker had a reputation in the community for behaving in threatening manner. Similarly, the reasonableness of your perception that the attacker was acting in an irrational and frightening manner would be buttressed if your attacker habitually used intoxicants, and was in fact intoxicated at the time of the attack.
Wrap-Up
So, those are the five principles of the law of self-defense in a nutshell. Obviously, a ton of detail has been left out, so take it for what it is, a concise overview. Hopefully, this can serve as a useful conceptual framework and context into which we can place the specifics of Florida law and the particular facts of this case in the days to come.
Andrew F. Branca is a MA lawyer with a long-standing interest in the law of self defense. He authored the seminal book “The Law of Self Defense” (second edition shipping June 22–save 30% and pre-order TODAY!), and manages the Law of Self Defense web site and blog. Many thanks to the Professor for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!
http://legalinsurrection.com/2013/06/zimmerman-case-the-five-principles-of-the-law-of-self-defense/
The delusional idiot does not want to believe the truth.
The trial started today with a stupid joke.
http://www.huffingtonpost.com/2013/06/24/george-zimmerman-knock-knock_n_3491367.html
http://www.huffingtonpost.com/2013/06/24/george-zimmerman-knock-knock_n_3491367.html
I don't understand what you're trying to say. Are you sarcastically calling the woman a thug? And she looked a little too anxious to shoot that dude with the knife. No warning or anything, just draw and shoot.
Sam Fisher
Banned
Of course you don't. You live in a fantasy dream world.
Stop acting like an idiot.
Listen little man... it's a demonstration video for women who might be attacked. Nothing more, nothing less. Some people (even women) will not simply lay down and take a fucking ass kicking and a rape, without putting up a fight. Unlike you, who will beg to suck the thug's cock so he won't hurt you. You wimp!
Fucking right, you sissy. Some day you're going to get the living shit kicked out of you. Maybe even stabbed or shot. When you're laying there on the pavement bleeding out because some fucking thug gave two shits about your life, maybe you can ask him why he didn't give you a fucking warning before gutting your dumb, sissy ass.
Your Darwin Award is awaiting you.
Sammy seems upset
Jagger69
Three lullabies in an ancient tongue
Wow. You must be having a tough night, Sam. You're way out of bounds with these comments because your post has nothing to do with the subject matter of the thread. If it makes you feel better to sit behind your keyboard and throw expletives at others, go ahead and indulge yourself. You embarrass yourself as a result. Whatever happened to that apology we got from you for acting like a fucking dickhead? You're sure acting like one now.
Sam Fisher
Banned
I'm sick of this prick busting my balls. He's been doing it since day one. I never confront him, in fact I have steered clear of him. He's the one who dives into my topics and starts his bullshit. I'm not going to sit back and take his shit anymore. I'll bust his balls just like he's busted mine in the past if that's how he wants it.
Funny how he has a free pass to act as he likes, but I'm supposed to be stifled?
Did you jump into Mariah's religion threads and berate her? How about vv? The self proclaimed super troll of FO.
I appreciate your concern about how I might be out of line sometimes, but ya know what? You have a habit of singling me out a lot. It would be nice if you focused on the many others in here who freely act like assholes, shitting on people and constantly being rude.
Just sayin'
Philbert
Banned
Zimmerman is gonna either walk or walk on appeal.
Too many people spoke out on this who shouldn't have (legislators with stupid hats, New Black Pussies leadership), so along with no evidence for the State to really prove it's case the jury should react negatively to the pretrial BS...even if they said they didn't hear anything.
Maybe just 'cause the State can't prove it's case, but Anthony MurdererMom showed us what can happen with today's 12 dumbasses on a jury.
Too many people spoke out on this who shouldn't have (legislators with stupid hats, New Black Pussies leadership), so along with no evidence for the State to really prove it's case the jury should react negatively to the pretrial BS...even if they said they didn't hear anything.
Maybe just 'cause the State can't prove it's case, but Anthony MurdererMom showed us what can happen with today's 12 dumbasses on a jury.
Sam
Jagger is a good guy. He probably has the best attitude and ability to post reasoned responses as anyone on this board. You probably think he is singling you out but he probably just was enjoying the kinder gentler Sam of the past few weeks. He hasn't commented to the others because others that flame and bait haven't shown a desire to tone down the rhetoric as you have expressed.
Jagger69
Three lullabies in an ancient tongue
Despite what You Might think and although I might act like it sometimes, I'm not really the official conscience or cop of FOs. There are a lot of fish in the sea....you catch what you can. :1orglaugh Besides, aside from her approach, I pretty much agree with Mariah a good deal of the time so it makes it much more difficult to find fault with her I suppose. You're right, though. There's no cause to be rude to others without provocation. Is it possible you provoked her in some fashion?
As far as VV is concerned, he is just pretty much out there all on his own so I try my best to steer clear of him. :eek: I'd advise others to do the same. In fact, HE'D advise others to do the same.
I seriously don't mean to single you out, Sam. In all candor, it is pretty easy to make that possible most of the time it occurs. If you feel I am being unfairly critical of you it is because we differ in our viewpoints and ways of dealing with others so drastically. Still, that's no justification if I am being out of line. If so, I'm truly sorry. I really am not deliberately trying to pick on you. I'll try to keep that in mind going forward.
Regarding your other comments, I'm sorry but I fail to see in Spoken Wheel's post where he was "busting your balls". I actually had a reasonably similar reaction to your post that left me equally confused. I suppose it's possible that somehow both he and I are in error. Please....maybe I'm just dense but I'd really appreciate it if you'd kindly explain how your post relates to the Zimmerman trial because I really don't get it. Thanks and, once again, I apologize. No malice intended....go Cardinals! :hatsoff:
Jagger69
Three lullabies in an ancient tongue
Actually, I like BC's answer better than the one I gave!! 100% on the money....especially the part about me being a good guy.
Yes, I'm the one living in the fantasy dreamworld. You know, the one where the south won the war, it's still the Wild West and you can literally just shoot any problem that might hinder you in the least. It's ok, I'm sure "god" will protect you if your gun jams in this reality you're clearly living in (the one where you served in every branch of the military at the same time somehow).
It's hard to tell when your being serious or sarcastic sometimes, what with your threads with titles that turn out to be blatant lies in an attempt to entrap people into making your argument for you.
A "demonstration video" that teaches people to pull out their gun and start shooting at the first vague sign of trouble is fucking stupid. There's no debating that. This one clearly romanticizes it too. "Let's get a chick with big tits to pull the gun and open fire with a smile on her face". Seriously, it's like something out of amateur erotic literature that you and your hick friends would pass around like dirty playing cards.
Lets see, what else? Oh yes, you've reverted to calling me a wimp and implying I'm a homosexual. If I recall correctly, I'm not the one who won't leave his house without a gun (and in ass-less chaps, you macho man, you).
And oh yes, I'll be the one getting the Darwin Award for getting stabbed to death. Surely it won't be the hillbilly with 20 guns that ends up accidentally shooting himself in the pecker when he's speeding down the road on his motorcycle and crashes into is long lost sister/fuck buddy's meth lab.
You Might have noticed that I have civil, rational debates with Bob, BC and Revidffum, but not with you. You don't have rationall debates with anyone, because you are a tiny, frightened, pathetic little boy with too many complexes to count. The only people that like or even respect you here are the few other delusional outcasts that share your evolutionary deficiencies. It's not your core beliefs or politics - the generally favorable view this board has towards bob and the others proves that - it's the fact that your a complete asshole who can only be tolerated by other complete assholes.
Sam Fisher
Banned
She (the witness) just said that when Trayvon said George was a "CREEPY ASS CRACKER" that it was not a racist comment. Lawyer asked her several times again if it was and she said no every time.
BTW... good analogy, BC
BTW... good analogy, BC
I haven't been watching . Did she really just say that? That is a a defense attorney's dream come true! She is trying to be a hero and is looking like a fool!
Team Zimmerman must be about to jump out of their seats with joy hahahah
Team Zimmerman must be about to jump out of their seats with joy hahahah
Sam Fisher
Banned
Yes, several times on re-questioning. And, when asked if that was a racist comment, she said no.
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