I knew if I waited long enough someone else would do the research so I wouldn’t have to:
Self defense is an affirmative defense to the crime of homicide. It has the effect of legally excusing the defendant from an act that would otherwise be a crime.
Stand your ground is not a defense, but an immunity statute, providing immunity from criminal prosecution. It is a bar to prosecution (and yes, arrest.)
A defendant charged with a crime who wants to raise Stand your Ground files a motion to dismiss claiming stand your ground immunizes him from prosecution. Here is a typical motion, filed in another case in December, 2011.
A hearing is held before trial. The burden is on the defendant to prove by a preponderance of evidence that stand your ground immunity applies.
The judge weighs the facts. If the judge agrees the defendant has shown stand your ground immunity applies by a preponderance of evidence, the charges are dismissed. The defendant can’t be prosecuted.
If the judge finds the defendant hasn’t met his burden, (including if the disputed evidence is so equal on both sides the judge can’t decide one way or the other) the case goes to trial to be decided by the jury. At trial, the defendant can still argue both self-defense and stand your ground immunity — he only has to establish some evidence of his theory, which can be just his own testimony, that he acted in self-defense.
The prosecution must prove his guilt at the jury trial beyond a reasonable doubt. Which means, if the defendant raises self-defense or stand your ground at trial and gets the jury instruction, the state, which has the burden of proving guilt beyond a reasonable doubt, must disprove self-defense. If the jury has a doubt, the defendant must be acquitted.
When Jeralyn sticks to law she’s usually pretty sharp. I’ve seen a lot of legal opining by people who aren’t lawyers. If you want an authoritative opinion on the Zimmerman case you should listen to people who actually practice criminal law in the state of Florida. Jeralyn got her information from a Florida judge’s opinion in a SYG case.
Every state has a different set of laws governing crime and criminal procedure. They must all conform to the US Constitution but that is a minimum standard – states can provide more rights to individuals than those set forth in the Bill of Rights. Here in California we have no such thing as a SYG motion.
The important thing to remember is that if Zimmerman claims self defense the state must disprove it beyond a reasonable doubt. That is a very high burden for the state to make.
Which brings me to the issue of probable cause:
Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated.
“You’ve seen the affidavit of probable cause. What do you make of it,” Smerconish asked. “It won’t suffice,” Dershowitz replied without hesitation.
“Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge,” Dershowitz said. “There’s simply nothing in there that would justify second degree murder.”
Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.
Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”
Smerconish identified the total lack of any mention of the supposed fight that occurred between Martin and Zimmerman prior to Martin being shot. He said he was disappointed that he did not see any mention of that conflict that led to Martin’s murder.
“But it’s worse than that,” said Dershowitz. “It’s irresponsible and unethical in not including material that favors the defendant.”
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
An Affidavit of Probable Cause is filled out by an investigator or prosecutor seeking a warrant. It is presented to a magistrate (judge) and must contain sufficient information to convince the magistrate that probable cause exists to justify the warrant.
The Affidavit does not have to include all the information known to the investigators, but it should contain any exculpatory evidence they have that would negate probable cause. If they have an eyewitness who claims they saw the defendant commit the murder but they know the defendant has a rock-solid alibi (like being in jail) then they must include that information.
The Zimmerman Affidavit makes no mention of any witnesses seeing Martin on top of Zimmerman, beating him. It also makes a number of conclusory rather then factual statements.
I would expect to see GZ’s lawyer file a SYG motion after he has a chance to review all the discovery. There will also be a preliminary hearing based on the Affadavit. This case won’t be disappearing anytime soon.
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