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That Odd Duck, Ohio: Self-Defense as an Affirmative Defense (Kind Of)

Submitted by cbaus on December 9, 2013 - 8:00am. Ohio Legislation Ohio Politics Education by Andrew Branca
Of the 50 states in the US, 49 of them require the State to disprove a defendant's claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence. Why is Ohio Such an Odd Duck on the Burden of Proof for Self-defense? To understand this curiosity it is necessary to cover a little history and to really understand what is meant by the phrase "burden of proof." Let's do them in reverse order.
Most of us know the phrase "burden of proof" from our understanding—borne of movies and TV dramas—that the prosecution bears the burden of proof to prove the defendant guilty beyond a reasonable doubt.
And that's true. But it also a very superficial understanding of how the law actually allocates the "burden of proof." So, let's dig a bit deeper.
The burden of proof actually involves two separate elements. The burden of production, and the burden of persuasion.


The Burden of Production

Much of a court's function is to act like a gatekeeper in terms of controlling what kinds of evidence and arguments can be brought before a jury. A courtroom without rules would be even more chaotic than the real world outside. In the Zimmerman case we saw a great many bizarre and reversible evidentiary rulings. But this post is focused not on the evidence, but the arguments.
Before a legal argument can be made before the jury it must have some foundation, some rationale for why it is relevant to the case and will help the jury resolve the conflict. 

Fail to Meet the Burden of Production and the Jury Will Never Hear "Self Defense"

If you're a law-abiding citizen who legitimately used force in self-defense, this can create an awkward situation. Because you acted in self-defense, you've likely admitted to the use of defensive force. So, now the State has a "victim" — the person you used force against —they have a defendant who has confessed to using that force against the "victim," and pretty much the only legal defense to justify that use of force has been taken off the table because the defendant failed to meet his burden of production.

The Burden of Persuasion

Once the burden of production has been met, and the issue is properly before the court, a decision must be made on who bears the burden of persuasion—that is, the burden of persuading the finder of fact (usually the jury) of the truth of the proposition.

The Burden of Persuasion: Affirmative Defenses and Self-Defense

But what about self-defense? Does the defendant similarly retain the burden of persuasion on top of the burden of production?
For much of modern legal history, the answer was, yes. Self-defense was one of a number of legal defenses termed “affirmative defenses.” Affirmative defenses are a different beast than what are called negating defenses. With a negating defense, the defendant argues that an element of the crime has been negated—for example, he was charged with theft of property in excess of $500 value, but in fact the property is worth less than $500.

Placing the Burden of Persuasion on the State is the Right Thing To Do

The practical dynamics of having the State bear the burden of persuasion, beyond a reasonable doubt, on self-defense demonstrate that this is the proper approach.

Except, That Is, for Ohio

Those are the cases in which the defendant ought to be acquitted, that is, with the exception of defendants in Ohio. The Buckeye state remains the last in the country to retain the old model of self-defense as a true affirmative defense, keeping the burden of persuasion for self-defense on the defendant, by a preponderance of the evidence. 

Expect to See Burden of Persuasion as Emerging Front in Self –Defense Wars
As the law of self-defense has evolved over the last few decades to increasingly favor the law-abiding citizen against the criminal—via the adoption of Stand Your Ground, Make My Day, presumptions of reasonableness, civil and criminal immunity—the political forces that favor the criminal have become disgruntled.

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