Uechi-Ryu.com

Discussion Area
It is currently Sun Oct 26, 2014 1:06 am

All times are UTC




Post new topic Reply to topic  [ 22 posts ]  Go to page 1, 2  Next
Author Message
 Post subject: Self Defense Revisted
PostPosted: Tue Dec 19, 2000 4:37 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Thanks GEM and Panther for your comments

First let me apologize for the typos. It
appears that my spell check didn't work.

Next, Panther's analysis of the case involving the so called "castle doctrine" prompted me to look it up (Panther had supplied the name of the case).

And yes GEM I do remember discussing it with you. Did you know that it was in 1974?

In any event there were actually two cases of the same name. They were entitled
Commonwealth of Massachusetts vs. Roberta E. Shaffer.

Both were heard by the Supreme Judicial Court (the SJC).

For you fellow legal Beagles the citations are: 318 NE2d 914 (the first case from the Appeals Court (1974); the second (which I will quote from) 326 NE2d 880 argued on February 7, 1975 and decided April 28, 1975.

The appeals were both from the findings of the jury and the judges instructions to the jury.

The Court in rendering its decision in the second case the stated: "From the evidence the jury could have found the following:
The defendant, who was separated from her husband and in the process of being divorced, resided with her two children in a one-story ranch house in Sharon. The victim, to whom the defendant was engaged, had lived in the house since 1971. The defendant had received several severe beatings at the hands of the victim, and on one occasion he had threatened to kill her and the children when asked to leave the defendant's home. Although the defendant loved the victim, she feared for herself and the children, and had persuaded him to seek psychiatric help.

On the morning of the homicide, the defendant was having breakfast with the victim when an argument ensued. At on one point, the victim rose, saying, "Never mind. Ill take care of you right now."
The defendant threw a cup of tea at him and ran downstairs to the basement playroom, where the children were having breakfast and watching television.
Shortly thereafter, the victim opened the door at the top of the basement stairs and said, "if you don't come up these stairs, I'll come down and kill you and the kids."
She started to telephone the police, but hung up the telephone when the victim said he would leave the house. Instead, he returned to the top of the stairs, at which time the defendant took a .22 caliber rifle from a rack on the wall and loaded it. She again started to telephone the police when the victim started down the stairs. She fired a fatal shot. More than five minutes elapsed from the time the defendant went to the basement until the shooting took place."

The Court at this point begins it's decision which is too long for this article, but I will summarize.
The defendant sought a reversal because of the Judge's error in his instructions to the jury on self defense because the judge said to the jury that defendant had a duty to retreat from her home. (please note that the above factual findings of the SJC did not disclose that the basement door existed, but it was part of the evidence)
In any event the Court upheld the judge's charge to the jury.

The Court went on to say "The defendant asks us in this case to adopt the majority rule that one assaulted in his own home need not retreat before resorting to deadly force."
The Court goes on to cite several cases and authorities, but concludes: "This has never been the law of the Commonwealth, and we see no reason to adopt it now. We prefer instead to follow our long-established rule that the right to use deadly force by way of self defense is not available to one threatened until he has availed himself of all reasonable and proper means means in the circumstances to avoid combat." The Court goes on to cite many Massachusetts cases establishing the rule of law applied.

At this point you probably guess my anguish when I first read this case back in 1975.

How dare they exceed the code of Bushido!

I feel the necessity to go on with the decision of the Court because its reasoning will explain what still may be the law of the Commonwealth in matters of self defense, beside the need to retreat.

The Court goes on to say: This rule does not impose an absolute duty to retreat regardless of considerations of personal safety. The p[roper application of this doctrine does not require an innocent victim to increase his own peril out of regard for safety of a murderous assailant (citations at this point are given) because one need only to retreat as far as necessary in the circumstances, until there is 'no probable means of escape" (cites the Crowley case at this point) Our rule give due recognition to the value of of human life, and requires that all available means for escape be exhausted. "The right of self defense arises from necessity and ends when the necessity ends" Commonwealth v. Kendrick, supra. See Beale, Retreat from a Murderous Assault, 16 Harv. L. Rev. 567 (1903)"

The Court goes on to further say:
"To what extent one who is threatened may go in defending himself of all proper means of escape ordinarily will are questions for the jury, to be decided in light of all the existing circumstances. (Massachusetts cases cited here) The Jury must receive complete instructions from the trial judge, including an explanation of the proper factors to be considered in determining the issue of self defense. The fact that one is threatened in his own home or in a place where he has exclusive right to be is one of the more important factors in making such determination, but this factor is not without limitation in its application.
I would stop the discussion at this point but the Court in this decision says a lot about the law of self-defense in Massachusetts that we can all ponder.
The Court goes on to say "in passing upon the reasonableness of the force used by the defendant, the jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from the area {in which the confrontation occurs...We would add that in determining whether all proper means have been taken to avoid the use of deadly force, the jury should be instructed that the location of the assault is an element of major importance in their consideration. We hold that one assaulted in his own home does not have the unlimited right to react with deadly force without any attempt to retreat. However, the importance of the location of the assault and the surrounding circumstances should be stressed to the jury."

The judge was held by the Court to have made a proper charge to the jury concerning the issue of her proper retreat under the circumstances. The judge had even emphasized the fact that the defendant was where she had the right to be.

The Court goes on to say that it considered the request of the defendant to adopt the majority rule requiring no further retreat from the basement, but the court states that in case law (law of stare decisis{case law as opposed to codified or legislated law) that it is clear "that even where no retreat is required, there are limitations to the use of deadly force in self-defense."

And that my friends is where the rub lies.

The Court goes on to cite the "reasonable man rule" to which I alluded in my original topic. In a case cited, the Court goes on to further say "We think that if the situation justified the defendant, as a reasonable man, in believing that he was about to be murderously attacked, he had the right to stand his ground." Citing another case, the Court said "Self defense may be successfully invoked only in those cases where the act of killing is necessary or reasonable appears to be so in order to preserve the defendant's life or to protect him from serious bodily harm"
The Court then reviewed the synopsis of the facts from which the jury could have decided that there was no risk of serious injury at the hands of the victim; that he had no dangerous weapon at any time; that he was only two or three steps from the top of the stairway when he was shot; that defendant had ample time to call the police; she could have left the basement with her children; a period of more than five minutes had from the basement encounter until the shooting; that she didn't warn before shooting; that there was evidence from the defendant's husband that she had considerable experience with the use of the rifle. One shot was sufficient to kill the victim.
The Court went on to complete its case by holding the judge's instructions to the jury as proper.

I will end this by quoting one charge to the Jury by the judge which was upheld in this case "a precondition to assert the defense of self-defense is that the person claiming it must have been assaulted [threatened] by the deceased in order to give rise to this defense whatsoever. There must be some overt act by the deceased threatening in nature to commit a battery likely to produce death or serious physical harm in the defendant or her children."

The Court then said that "In sum, the judge's instructions to the jury required them to consider the totality of circumstances in deciding whether the shooting was self-defense. There was no error."

At this point I don't remember if I addressed GEM's original concerns, but you can see the attitude of the Court in matters of self defense as it saw it in the law then developed in the Commonwealth of Massachusetts. Does anybody have any input to what could have happened if the current statutory law could have mandated if the same case were tried today?

Alan K


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Tue Dec 19, 2000 6:57 pm 
Offline
Site Admin
User avatar

Joined: Wed Sep 16, 1998 6:01 am
Posts: 6021
Location: Mount Dora, Florida
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Does anybody have any input to what could have happened if the current statutory law could have mandated


What is the current statutory law today Al?

Also:
1. Did the defendant feel that her children were endangered? Did the court believe she should have abandond them and run out of the house?

2. Still trying to get the answer to this one: "Did the woman say anything following the incident, without council, that hurt her defense?" For instance, a lawyer would have helped her phrase what happened to jive with the current statute of self defense, whereas she might have described the incident, while in a terrified state of mind, in a way that a prosecutor could later use against her.

BTW, the spell checker goes through the motions, but errors-out before actually making the corrections. I'll have to notify Scott about this.


------------------
GEM


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Tue Dec 19, 2000 9:12 pm 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
Working on getting more info for the questions. I've also put in a call to my friend who knew the arresting officer and was a Sharon PO... Hmmm... Gotta ask, he might still be one. Image

Also, started the research for the current "home is your castle" law and how that would change the case today. If I come up with anything worthwhile, I'll jump in with it.


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Tue Dec 19, 2000 9:39 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
To: GEM

With reference to the question of what the defendant said to the police was not reported in either of the Shaffer cases.
This would require the study of the transcript of the trial. I did go back to the original case, which did give reference to the police being on the scene and had looked into different rooms of the house, and the Court noted that no illegal search was conducted warranting suppression of evidence. Her counsel did attempt to get a record medical record going back to 1970 when she was admitted to a hospital for a tonsilectomy at a time after she was severely beaten about her head and neck.
Her records or part of them were offered into evidence and excluded, but the Court was helpless to rule on this because the Defendant's attorney failed to save his exception to the exclusion. The purpose was to show that her fear of death or harm was justification of her right to the self-defense issue over riding the need to further retreat. It would be speculation if the case would turn on this point. You may recall that in that time era battered women were not always given much credence.

I could not put my finger on the so called
"castle defense" statute enacted in King's administration.

The most current case mentioned as a leader in the theory of self-defense is Commonwealth v. Adriano Barros(and five companion cases) This case is loaded with other issues, but as to self-defense the defendant sought to reverse a conviction of murder in the first degree and A & B with a dangerous weapon because the judge failed to instruct the jury on the law of self-defense
and to consider evidence that in the past, one particular defendant (who sought this defense),was not given evidence that it could consider of intoxication of the defendant who contended this would be reasonable because in the past, he had been beaten and robbed, stabbed thre times, was shot once, and he suspected that the victim was a former assailant reaching for a weapon.
This defendant tesitified that he had stabbed the victim. He also testified that on the day of the murder, beginning shortly after he awoke and continuing through that evening, he consumed a large amount of beer and liquor, smoked marihuana, ingested cocaine and the drug Percoset, and as a result was intoxicated at the time of the killing at the Tasty Chicken restaurant later that night. He testified that his perceptions being distorted, he belived that Sarjeant (victim) had attacked and stabbed him several years ago and that Sarjeant was reaching for a weapon when he moved his hand to his side, Villaroel (defendant) struck Sarjeant first with the "boom box" and then, after Villaroel was knocked down and punched, he drew his knife and stabbed Sarjeant.

The Court held that an instruction on self-defense is required in a homicide case if the evidence most favorable to the defendant warrants a conclusion that "the defendant: (1) had reasonable gorund to believe and actually did believe that he was in imminent danger of death or serious bodily hearm, from which he could save himself only by using deadly force, (2) had availed himself of allproper means to aavoid physical combat, before resoerting to the use of deadly force, and (3) used nor more force than was reasonably necessary in all\ circumstances of the case. (the Court here cites 2 Massachusetts cases) The trial judge did instruct the jury on the law of self-defense, he said, "out of an abundance of caution." Defense sought to overturn the case on the ground that the judge failed to charge the jury with intoxication instructions as I outlined above. The Court ruled that there was insufficient evidence to warrant an instruction on self-defense.
The Court said that it did not to rule on whether the instruction was complete because the instruction was not even required in the circumstances. In any event a good discussion what would be considered being a reasonable apprehension of life threats and subsequent use of lethal force ensued and the intoxication theory was shot down as not reasonable. Cases are cited in which provocation was also ko'd and the Court said
"The same holds true for the self-defense test, which requires that the defendant had reasonable ground to believe that he was in imminent danger of death or serious bodily harm and that he used no more force than was reasonably necessary in all the circumstances of the case." (Harrington case)
This case has further discussion of other cases where charges to the jury were upheld which closely tracked the Harrington case and this (Barros) case.

I took the time to put in the jury charge, because this charge reflects the law of the state if not over turned for error.

There are few cases exactly on point, and each case is judged on its own facts and circumstances and as interpreted by a jury.

IF you kind of memorize the law as presented by the Court, this will help you in the different scenarios of moot cases you can develop in its application to the martial arts.

If there is enough interest I will write more and in depth overviews of the law of self defense without doing case reports, which can be boring. We do learn law by prolific case study, statutes, administrative rules and regulations, local state and federal and by text studies written by law professors or experts.

Let me know your comments and happy holidays to all.

Alan K


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Tue Dec 19, 2000 9:41 pm 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
Just talked with my friend... It was Roberta (not Gloria as I had incorrectly remembered) and it was a .22 rifle (not a shotgun as I had incorrectly remembered)... Single shot through the heart as a matter of fact. Now I'm embarassed Image and will do 10 Hail karate's for penance... Image That should teach me to do more of what I did in the de-myth-ified thread (i.e.: actual research with cites and sources) rather than just jump in with this ancient memory! My late granny called it "Anheuser's disease". Image You know the second thing that goes is the memory... ummmmm, I forget what's first. Image

Almost forgot, he said that the perp did break in the basement door and that Roberta was threatened along with their child, a physically disabled daughter. Also, he thought that she never had to sreve too much time in MCI-Framingham because of appeals, house-arrest instead, and finally the pardon from Ed King. (There was some thought that it may have been as little as a day or two in MCI...) His thought was that the actual incident occurred in 1970-71, but it was 1974 before the subsequent trial ended in her conviction, appealed in 75. That matches pretty much with what AlanK-san wrote.

Oops, edited the extra in as Alan was giving more info...

[This message has been edited by Panther (edited December 19, 2000).]


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 7:16 am 
I am both saddened and disgusted when I read such crap. This type of ridiculous interpretation, and burden placed on rational law abiding citizens as opposed to the law breaker, is putrid.

One of the reasons we have the right of self defense (beyond what should be common sense) is because LEO cannot be everywhere and cannot protect us from everything.

By removing our right to defend ourselves and placing great burdens on citizens to leave our homes etc. the Governments is taking that right away from us. Therefore one might also say that the Government is then taking on the burden of protecting us from violence being done to us at all. If we cannot defend ourselves the they must.

Therefore, when one is placed in a situation where we have resorted to defending ourselves from violence, the Government has now failed to protect us from that situation and is negligent.

I wonder if there is a law suit in this reasoning?

If the Government has removed my right to defend myself, then they must defend me. If they fails to do so, they should be held accountable.

(Of course LEO's can't be everywhere that is why we MUST have the right to defend ourselves.)

A good high $ law suit might just get our rights back.

Just an angry thought.

Rick


Top
  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 3:23 pm 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Rick Wilson:

By removing our right to defend ourselves and placing great burdens on citizens to leave our homes etc. the Governments is taking that right away from us. Therefore one might also say that the Government is then taking on the burden of protecting us from violence being done to us at all. If we cannot defend ourselves the they must.

Therefore, when one is placed in a situation where we have resorted to defending ourselves from violence, the Government has now failed to protect us from that situation and is negligent.

I wonder if there is a law suit in this reasoning?<HR></BLOCKQUOTE>

Sorry, but it's already been tried (both meanings of that word) and failed on a couple of occasions. I apologize for not having my notes handy on this snowy morning, but there is one phrase that I do recall specifically (I quoted it when I testified in front of the Committee on Public Safety against what became Chapter 180)... In that decision the court held (and it was upheld all the way through the appeals process) that "the police have no duty to protect private citizens from harm, only society at large." (Whatever the hell that means! Image One thing we know that it does mean is that you can't sue the police for failure to protect you. In fact, continuing on in that case, the court's ruling basically held that it is only incumbant on the police to intercede after a crime has been committed, not even during the commission of the crime! (One of the cases where the police were sued involved a group of women who were attacked in their apartment. They were able to call 911 surrepticiously, but unable to speak. When the police arrived, they didn't see anything wrong and left. Over the next 8 hours the women were brutally raped and at least one was murdered. The survivors sued saying that the police failed to protect them. The court ruled against them giving the decision that I described -from memory- above.)

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
If the Government has removed my right to defend myself, then they must defend me. If they fails to do so, they should be held accountable.


Sorry, won't happen. That's kind of like asking a wolf to convict a fellow wolf for eating a sheep. The case law is already stacked heavily against your success. I don't like it any more than you do, I'm just giving the facts as they currently are. And things certainly won't change as long as we keep electing the same group of Demopublicans and Republicrats. It makes little difference to me whether a politician wants to destroy my 4th Amendment, 5th Amendment, 6th Amendment or 2nd Amendment Rights, I'm against any abridgement of ANY Rights of anyone.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
(Of course LEO's can't be everywhere that is why we MUST have the right to defend ourselves.)


In a discussion with a woman who was very anti-self-defense, she told me that 911 was all we needed. When I gave her the case law, she said that all we needed was enough police officers to protect everyone. She didn't much appreciate it when I pointed out that, by definition, that's called "a Police State"... The conversation deteriorated further when she said that banning guns would help and I countered that in order to be philosophically honest that when she needed to call 911, she would then have to require that they only send the police who don't carry guns... Last I spoke with her, she was doing very well in her small-bore pistol league. Image (It also helped that my wife talked with her about what it feels like to wait on hold with 911 -in the same place the woman lives- for the better part of 20 minutes while someone is trying to get to you and threatening all manner of torture. Image )

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Just an angry thought.


Sometimes anger is good... Just wish more people would wake up.


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 3:26 pm 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
Now, back to our story... Image

Since AlanK-san didn't find the "castle doctrine" law in question, I did some digging... It's Chapter 278, Section 8A of the MGL. (You can find it online at: http://www.state.ma.us/legis/laws/mgl/278-8A.htm )

it reads as follows:

<hr>
<blockquote>
<h2>GENERAL LAWS OF MASSACHUSETTS</h2>
<center>PART IV. </center>
<center>CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES. </center>
<hr>
<center>TITLE II. </center>
<center>PROCEEDINGS IN CRIMINAL CASES. </center>
<hr>


CHAPTER 278. TRIALS AND PROCEEDINGS BEFORE JUDGMENT. </p>


Chapter 278: Section 8A. Killing or injuring a person unlawfully in a dwelling; defense.</p>


Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.</p>
<hr>
</blockquote>

(Gee, there's that wording again... Image )

It should be noted that there is plenty of "weasel room" in there. For example: What constitutes a dwelling? (case law in Massachusetts has found that a motor-home is not considered a dwelling) What consitutes a person who is "unlawfully" in said dwelling? (abusive spouse, the pizza delivery guy, a friend of a friend?) And if it's an attack from a "lawful" occupant, does that mean that retreat is necessary? Then there's the "reasonable means" wording. What constitutes self-defense by reasonable means? Would that be an elderly woman with a gun against an unarmed young man? What about a person who's trained in martial arts against a teen-aged punk?

Also notice that there is no right to protect property... PERIOD.

Would this have helped Roberta Shaffer? That's a pretty good question. There's little doubt that she and her daughter were in danger. I got a call from my friend last night (who doesn't know that I'm discussing this on a martial arts forum) because he remembered something... He remembered that the perp was "some sort of a martial arts type, who had a history of using her as a human punching bag"! Image He also remembered that that was not allowed as part of her defense at the time... As already mentioned, it was ~25 years ago and today battered women get listened to a lot more. The real question is whether the perp would be considered a "lawful" or "unlawful" occupant. In Roberta Shaffer's case, taking out a 209A -restraining order- (under current law) would establish him as an "unlawful" occupant... and save her lots of jail-time and expense.

So under current MGL, you don't have a duty to retreat from your own lawfully occupied dwelling before you can defend yourself against an imminent threat of death or grave bodily injury. However, that is not true outside of your own lawfully occupied dwelling! Outside of your home you have to retreat if it is safe to do so, and failure to retreat if it is safe to do so in such a circumstance would probably mean that you would be unable to use self-defense as a defense. The judge might not even let your lawyer raise the issue during the trial, and you could face a murder charge with essentially no defense at all! If you're outside your home and there is a threat and you can run away, the law in Massachusetts requires you to do so. it does not require you to run across route 128 at rush-hour in order to get away, that isn't safe. (Sorry, that's the only example I could think of...)

Having said all that, if you use deadly force against someone in your home, I believe you will more than likely still face a criminal trial. The issue in the trial would not be whether or not you should have retreated, but rather whether or not you were actually in imminent danger of death or grave bodily harm.

That brings us back to things like, "safe rooms" and living in "Condition Yellow" and understanding what the "safe retreat" provisions are and understanding the meaning of "disparity of force". All of these (plus the meaning of the phrase "imminent threat of death or grave bodily harm") are necessary for people to understand ahead of time and make into a subconcious decision criteria (just as we do in martial arts training), because you will not have time to decide when the feces hits the rotating device on the street! (Trust me... Image )



[This message has been edited by Panther (edited December 20, 2000).]


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 8:43 pm 
Offline

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Thank you Panther for posting the Statute.

I have not had the time to do that research.

Having read the case accounts, you are well aware that the "Reasonable Man Theory" applies even in cases of application of the statute. What the statute does is to give the right to assert self-defense as a matter of law without first having to prove that you have exhausted all means of escape.

The Harrington Case and the Barros case nevertheless, require that the action of the defendant is within the scope of being reasonable under the circumstances.

Paul correctly points out that this in effect is a subjective test and as Panther and Paul well know is influenced by the beliefs of the jury as a whole,since it is the finder of fact, not the judge.

Thank you guys

Alan K


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 9:00 pm 
Offline

Joined: Mon Nov 08, 1999 6:01 am
Posts: 1070
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:
Paul correctly points out that this in effect is a subjective test and as Panther and Paul well know is influenced by the beliefs of the jury as a whole,since it is the finder of fact, not the judge.

<HR></BLOCKQUOTE>

If the defendant does not lay a sufficient foundation for a self-defense argument, the jury may never receive proper instruction in what the law allows in self-defense. If the defendant's counsel does not ask for a self-defense instruction (and supply the same to the judge), then the jury will certainly get no such instruction, and it will be the defendant's fault and his counsel's fault - but it is a mistake that probably will not be set aside either on appeal or on ineffective assistance of counsel grounds. I have seen it happen and I've reported on it in Van's Forum.

My point is that while the jurors do decide the fact as they apply the law to them, they only are given what law the defendant's counsel properly requests and what the judge has decided to give.

They also only hear and see such evidence as the judge decided was proper.

student



[This message has been edited by student (edited December 20, 2000).]


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 9:06 pm 
Offline

Joined: Mon Nov 08, 1999 6:01 am
Posts: 1070
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:
Paul correctly points out that this in effect is a subjective test and as Panther and Paul well know is influenced by the beliefs of the jury as a whole,since it is the finder of fact, not the judge.

<HR></BLOCKQUOTE>

If the defendant does not lay a sufficient foundation for a self-defense argument, the jury may never receive proper instruction in what the law allows in self-defense. If the defendant's counsel does not ask for a self-defense instruction (and supply the same to the judge), then the jury will certainly get no such instruction, and it will be the defendant's fault and his counsel's fault - but it is a mistake that probably will not be set aside either on appeal or on ineffective assistance of counsel grounds. I have seen it happen and I've reported on it in Van's Forum.

student


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Wed Dec 20, 2000 9:23 pm 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
Yet more great arguments in favor of Fully Informed Juries. If someone acted reasonably in self-defense, people must be told that regardless of what the judge or attorneys tell them, they can set aside the verdict and return a "not guilty"... additionally, if it is a heinous law, they should know that they can basically "nullify" that law. It's a tradition that has been around at the very least since Thomas Paine was acquited!


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Thu Dec 21, 2000 5:15 am 
Offline

Joined: Sun Sep 27, 1998 6:01 am
Posts: 317
It seems to me that the so-called "reasonable man" standard is one of the most slaient factors in either the prosecution or defense of one of these self-defense situations. And we need to keep in mind that the jury of 12 supposedly reasonable persons will have all the time they want to contemplate the scenario in a situation of tranquility. In other words, what you felt and thought you perceived and decided to do in the heat of the moment, under the influence of panic or terror or the whole chemical cocktail may not jive with what the jurors decide was the correct rational course of action (or inaction, as the case may be). The burden of proof will be on the defendant to show that any reasonable person would have or should have acted as you did.
This is probably easiest to prove when there is a clear lethal threat... an assailant with a weapon,etc. Probably little in the way of legal defense if you are provoked by shaming or belittling words or gestures. Hard as it is to accept, we may just have to tolerate those types of insults.


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Thu Dec 21, 2000 5:47 am 
Offline
User avatar

Joined: Wed May 17, 2000 6:01 am
Posts: 2813
Location: Massachusetts
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by paul giella:

Hard as it is to accept, we may just have to tolerate those types of insults.<HR></BLOCKQUOTE>

There is no "may" to it. Insults do not meet the requirements in any U.S. jurisdiction...

As far as getting a jury of 12 of your peers. FAT CHANCE!

Besides the fact that I wonder about any of the twelve people who weren't smart enough to get out of jury duty... Image <- That's a joke...

Everyone needs to realize that in our modern judicial system's setup, "Voire Dire" is just French for "Jury stacking"! If you act in self-defense, you better meet the criteria, because whether you have or not, that politically-motivated DA will make sure the deck is stacked against you from day one.


Top
 Profile  
 
 Post subject: Self Defense Revisted
PostPosted: Thu Dec 21, 2000 12:28 pm 
Offline

Joined: Mon Jul 24, 2000 6:01 am
Posts: 270
Location: Washington, DC
Can anyone give some guidance on how to look up what the "house & castle" code is for Maryland, DC, VA?

Now you all have me worried.

Also, as many of you probably already know, the possession of firearms by private citizens is ILLEGAL in the District of Columbia. And to top it off, we have taxation without representation. Image

So, in the district, if you shoot someone in your home -- you are not only a criminal, you didn't even have the right to vote on the law that made you one. How's that for freedom?

dana (I haven't had my coffee yet so I'm grumpy) sheets


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 22 posts ]  Go to page 1, 2  Next

All times are UTC


Who is online

Users browsing this forum: No registered users and 2 guests


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
cron
Powered by phpBB® Forum Software © phpBB Group