Moderator: Van Canna
ONE MASSIVELY IMPORTANT point that came through to me loud and clear reading Rory’s material which seems obvious once you focus on it but is often missed – self defence is an affirmative defence.
This means you are admitting to the act of assault/homicide – you are guilty of the act and the courts no longer have any burden to prove that. YOUR defence is that you were justified in committing the assault/homicide BUT now the burden is on you to prove that in court.
A civil court may not be as cut and dried as criminal nor are they required to find in your favour just because you were acquitted in criminal court.
So once again I want to stress that anything you say that could be taken very differently than you intended can be used against you. Facts can be disputed but most often it is emotionally charged statements that are distorted.
What's an affirmative defense?
An affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability.
In criminal trials, the most common affirmative defenses include self-defense, defense of others and insanity. Duress, entrapment and involuntary intoxication are used less often.
To see how one of these defenses works, let's look at the pending Trayvon Martin trial. George Zimmerman will undoubtedly argue that he acted in self-defense as defined by Florida's "Stand Your Ground" law. There's absolutely no question that he killed Martin. If he can successfully prove he acted in self-defense, the law says he cannot be convicted of murder. He will go free.
Self defense is considered an “affirmative defense,” meaning it provides justification for the defendant’s actions, rather than denying them. If a defendant in a court of law pleads not guilty due to self defense, it is the prosecution’s job to prove, beyond a reasonable doubt, that the amount of force used by the defendant was not in fact necessary.
They may do this by making one of two basic arguments: that self defense was not required in that situation, or that the defendant used excessive force, meaning that he or she hurt the other person more than was necessary.
Prosecutors nearly always prefer a civil claim to be delayed until a criminal case is resolved. They fear a victim’s interest in a civil case may be used to impeach the victim’s credibility in the criminal case testimony. This concern is greatest in cases where the victim’s credibility is paramount.
The victim’s lawyer should always attend the sentencing hearing. Mitigating testimony offered at the hearing may reveal evidence of diminished cognitive abilities or other mental deficiencies. While the criminal defense is offering this evidence to explain why the perpetrator should not be judged too harshly, the plaintiff attorney can use the same evidence to argue that an intentional-act exclusion in a liability insurance policy should not prevent coverage for the incident.
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