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Zimmerman's Low Burden of Proof on the Issue of Self Defense

by Professor Will Huhn on April 13, 2012

in Criminal Law,Wilson Huhn

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Six years ago in Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense. The Fourth District Court of Appeal stated:

But, with these additional facts, did he also incur a âburden of proofâ identical to the State's? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt?  Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value – other than they might be true? The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.

Last year the Fifth District Court of Appeal quoted this language from Murray and followed the same rule in the case of Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). In Montijo the trial judge had instructed the jury that the defendant had the burden of proving that he acted in self-defense "beyond a reasonable doubt." Montijo's attorney did not object to the jury instruction, but the appellate court found that the trial judge had committed a "fundamental error" by giving that instruction and ordered a new trial for the defendant. The Fifth District Court of Appeal stated:

The inclusion of the phrase âbeyond a reasonable doubtâ in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.

Seminole County, where Trayvon Martin was killed, is in the is in the Fifth Appellate District, so the rule in Montijo is controlling unless and until the law is changed.

Florida Standard Jury Instructions online are in accord with the courts' rulings in Murray and Montijo. Instruction 3.6(f) states:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

On April 1, 2012, the Florida Bar News published proposed amendments to the Standard Jury Instructions. The proposed amendment to Instruction 3.6(f) would strengthen this language to clarify that the jury may convict the defendant only if it finds beyond a reasonable doubt that the defendant did not act in self-defense. The proposed amendment adds the underlined phrase to the charge to the jury:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

The bottom line is that Zimmerman cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.

{ 3 trackbacks }

Zimmerman in Hiding - Page 59
May 9, 2012 at 10:27 pm
George Zimmerman prosecutors file list of witnesses, evidence in Trayvon Martin shoot - Page 26
May 15, 2012 at 5:17 pm
What if Zimmermann Walks? - Page 22
May 28, 2012 at 9:52 am


larry d. April 13, 2012 at 8:38 am

It's going to be a tough row for the prosecutor but hopefully praising and praying with Trayvon's parents will keep the race riots to a minimum. Maybe they should stock the jury with toothless white rednecks to help deflect the blame.

Roach April 16, 2012 at 5:57 pm

Good analysis.

Goldie April 23, 2012 at 12:49 am

Zimmerman already admitted to stalking the teen on the 911 call. Stalking is against the law in Florida, and of course stalking someone for no reason not breaking any laws is illegal. Zimmerman also exited his vehicle to pursue the victim bringing with him his firearm, that is aggravated stalking. The 911 calls make it clear that Zimmerman created the entire situation based on his false suspicions. That makes Zimmerman the instigator of the incident and directly responsible the death.

alacran May 6, 2012 at 9:42 pm

That is really irrelevant to the self defense issue, but he did not admit to "stalking" under FL law. The only way they could prove he was the instigator, is that if they could prove he attacked Martin, initially, and so far, we haven't heard anything that proves that. Now, they may be able to do it, but don't see it yet. I have a question. Would you argue with an article by physicians about a surgical procedure? Why are you arguing with the legal anallysis, that is done by equal professionals. Even the prosecutor has admitted that she will have a rough go of it.

Gandydancer April 24, 2012 at 1:09 am

@Goldie: Keeping someone in sight so that you can identify them to the police, whom you have called, is not "stalking" under any statute of which I am aware. Perhaps you care to provide a citation?

E. Joyce May 18, 2012 at 1:08 pm

Gandydancer, Calling 911 and their telling you NOT to approach him, you ignoring their instruction, getting out of your car and following them when no other person is in immediate and life-threatening danger is a conscious decision. Taking a gun along with you, when there is no visible weapon, is at best egregious decision making, at worst a conscious premeditated decision to murder someone. He was shot point blank, in the heart.

Spokker June 1, 2012 at 11:54 pm

"taking a gun with you"

Haha, he can take a gun with him whether he was "stalking" a black teenager, watering the lawn or taking a dump. He was licensed to conceal carry.

I don't think I can accuse the anti-Zimmerman camp of this with 100% confidence, but they do sometimes make it seem like Zimmerman drew his weapon and ran after Martin in an aggressive manner.

I doubt the evidence at the trial will tell us exactly what happened. I think Zimmerman will get off.

Herb Martin April 27, 2012 at 9:24 pm

No, Goldie, he didn't admit to 'stalking',you or someone has invented that.

There is in fact no evidence (in what is publicly known) Zimmerman followed closely, profiled, or confronted Martin – even though none of those action are necessarily illegal.

Zimmerman well have walked along behind Martin, even asked him what he was doing or where he lived – but there is not even evidence for this.

As long as Zimmerman wasn't breaking the law when, (and if) as Zimmerman, claims, Martin came up behind him, challenged him an then ASSAULTED him.

Zimmerman has copious evidence that Martin was already in the process of doing great bodily harm or perhaps even likely to kill.

That is all it takes. If Zimmerman was not acting illegally when Martin attacked him, case over.

Expect it.

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