Sen. Bradley filed the Burden of Proof bill this morning - Page 4
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Thread: Sen. Bradley filed the Burden of Proof bill this morning

  1. #31
    Distinguished Member BrianB's Avatar
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    Quote Originally Posted by deadeyedick View Post
    I guess I'm going to be the one guy who disagree with this. Requiring the state to prove one's guilt beyond a reasonable doubt twice does not seem reasonable to me. As a general legal principle, the petitioner in a court proceeding has the burden of showing why their petition should be granted by the court. Requiring a defendant to show - with the lower standard of a preponderance of evidence - why they should be immune from even having to stand trial, seems reasonable to me. Flame away.
    No flame, but a brief (?) discussion.

    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—

    (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

    (2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.

    (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

    Nothing in that statute calls for an "immunity hearing". The immunity hearing was invented by prosecutors and judges, and when they invented it they also set the rules and set them such that the accused had to prove they were justified by a preponderance of the evidence.

    But the law stipulates that "[a] person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action". I may be wrong but I believe that before one gets to an "immunity hearing" they have already been charged with some crime (criminal prosecution). In my mind the legislature worded the statute the way they did in order to prevent the filing of criminal charges at all unless it appears that the use (or threatened use) of force was unjustified. And if the state feels that the use or threatened use was unjustified and wishes to overcome the prohibition on arrest and prosecution, then they should have to prove it. Otherwise the state can just arrest and prosecute anybody they feel like (as they have done for so long) and nothing really changes other than the state is punished by having to cover all of your fees and opportunity costs if you ultimately prevail. That money isn't coming out of the prosecutor's or police officer's pocket, so I'd say that's little deterrent.

    Now as to the standard of evidence, I might be open to whether the standard should have to be beyond a reasonable doubt, or if it should be preponderance of the evidence. That said, if it's simply preponderance of the evidence, you may have very little evidence to preponder (I used that word incorrectly on purpose). The state has a dead body and a warm gun as their evidence. You have your word that he reached for his waistband. It may be tough for you to win that one on a "preponderance of the evidence" basis.

    If the state can't prove beyond a reasonable doubt that the use of force was not justifiable then they cannot win a conviction at trial so you should never be put in that jeopardy in the first place. Nobody gets convicted at the outcome of an immunity hearing, so that's the perfect place for the state to make their case and if you fail there then you can suffer the insane expenses to prepare to defend your entire life in a criminal trial - instead of the state being allowed to proceed to trial (where you are at peril) with a case that they are unable to prove your conduct was not justifiable beyond a reasonable doubt. Once it goes to trial you can't take the chance on them not being able to sway a stupid jury and you have to pull out all the stops. They should never be able to make it that far if they can't prove it was unjustified beyond a reasonable doubt.

    That's my opinion on the matter at present - but I'm open to arguments to the contrary.
    Last edited by BrianB; 02-10-2017 at 10:23 AM. Reason: punctuation, clarity
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  2. #32
    Super Moderator Rvrctyrngr's Avatar
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    Quote Originally Posted by BrianB View Post
    No flame, but a brief (?) discussion.

    776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—

    (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

    (2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.

    (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

    Nothing in that statute calls for an "immunity hearing". The immunity hearing was invented by prosecutors and judges, and when they invented it they also set the rules and set them such that the accused had to prove they were justified by a preponderance of the evidence.

    But the law stipulates that "[a] person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action". I may be wrong but I believe that before one gets to an "immunity hearing" they have already been charged with some crime (criminal prosecution). In my mind the legislature worded the statute the way they did in order to prevent the filing of criminal charges at all unless it appears that the use (or threatened use) of force was unjustified. And if the state feels that the use or threatened use was unjustified and wishes to overcome the prohibition on arrest and prosecution, then they should have to prove it. Otherwise the state can just arrest and prosecute anybody they feel like (as they have done for so long) and nothing really changes other than the state is punished by having to cover all of your fees and opportunity costs if you ultimately prevail. That money isn't coming out of the prosecutor's or police officer's pocket, so I'd say that's little deterrent.

    Now as to the standard of evidence, I might be open to whether the standard should have to be beyond a reasonable doubt, or if it should be preponderance of the evidence. That said, if it's simply preponderance of the evidence, you may have very little evidence to preponder (I used that word incorrectly on purpose). The state has a dead body and a warm gun as their evidence. You have your word that he reached for his waistband. It may be tough for you to win that one on a "preponderance of the evidence" basis.

    If the state can't prove beyond a reasonable doubt that the use of force was not justifiable then they cannot win a conviction at trial so you should never be put in that jeopardy in the first place. Nobody gets convicted at the outcome of an immunity hearing, so that's the perfect place for the state to make their case and if you fail there then you can suffer the insane expenses to prepare to defend your entire life in a criminal trial - instead of the state being allowed to proceed to trial (where you are at peril) with a case that they are unable to prove your conduct was not justifiable beyond a reasonable doubt. Once it goes to trial you can't take the chance on them not being able to sway a stupid jury and you have to pull out all the stops. They should never be able to make it that far if they can't prove it was unjustified beyond a reasonable doubt.

    That's my opinion on the matter at present - but I'm open to arguments to the contrary.
    Spot on, Brian.

    The courts/prosecutors see this as analogous to a motion to suppress, where the defendant DOES have the burden to show why the evidence should be suppressed.

    Advocates of this bill see it more as when an LEO is facing a 1983 suit for denial or rights under color of law. The law says the LEO HAS qualified immunity, and it is up the the plaintiff (analogous to a prosecutor) to show why immunity should not apply.

    Additionally, the bill actually makes it more difficult to get an immunity hearing (still a creation of the courts not based on statute). A defendant must present at least a prima facie case of claimed self-defense. As it stands now, all they have to do is ask.
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  3. #33
    Distinguished Member TitleIIToyLover's Avatar
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    The legislative intent was that there would not even be an arrest unless the LEA had PC to find that the incident was not self defense. How much is it to ask that if the LEA had PC to arrest, that the prosecutor prove that the information that the LEA used to establish PC, should be proven to a yet higher standard before subjecting a person to a trial.

    I understand that this will be abused by the defense bar. That is their job. But, it is a basic tenet of the law that 10 guilty men go free to save one innocent from suffering unjustly.

    ETA: I have heard it argued by procedures that this process would require them to "show their hand" before trial. That is exactly the attitude that makes this clarification of the statute necessary. Prosecutors are not supposed to be hiding evidence and playing GOTCHA at trial, their job is not to put the accused it prison, their job is to seek justice for all. The problem is you can't count justice, you can count convictions.

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  5. #34
    Senior Member WeaselFire's Avatar
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    The only reason the stand your ground law exists is because some prosecutors and civil attorneys argued that a shooter was still at fault because they chose to shoot in self defense instead of running. But the law gets misused and is frequently misunderstood to apply to whether or not the shooting was a justified self defense. This is why the claim, if proved by the claimant, negates legal and civil arguments.

    The cases where a defendant claimed a stand your ground defense and lost, that I've seen in the last five years or so, weren't stand your ground situations. Changing the burden of proof to a prosecutor won't fix that.

    It really should be an affirmative defense, and it's other laws and applications thereof that cause the real problem.

    Jeff

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  6. #35
    Distinguished Member TitleIIToyLover's Avatar
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    Quote Originally Posted by WeaselFire View Post
    The only reason the stand your ground law exists is because some prosecutors and civil attorneys argued that a shooter was still at fault because they chose to shoot in self defense instead of running. But the law gets misused and is frequently misunderstood to apply to whether or not the shooting was a justified self defense. This is why the claim, if proved by the claimant, negates legal and civil arguments.

    The cases where a defendant claimed a stand your ground defense and lost, that I've seen in the last five years or so, weren't stand your ground situations. Changing the burden of proof to a prosecutor won't fix that.

    It really should be an affirmative defense, and it's other laws and applications thereof that cause the real problem.

    Jeff

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    So, if I understand what you are saying...you want all GGs arrested and have to prove their innocents in court? I'm truly confused.
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  7. #36
    Distinguished Member BrianB's Avatar
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    Quote Originally Posted by TitleIIToyLover View Post
    So, if I understand what you are saying...you want all GGs arrested and have to prove their innocents in court? I'm truly confused.
    That's what it sounds like to me too.

    Current state of affairs is a prosecutor can bring a case that they know damn good and well they don't have the evidence to prove beyond a reasonable doubt. But in the court-created immunity hearing all they have to do is win the "preponderance of the evidence" battle with you and it will head to court. Now you're facing something that could put you in prison for 20 years and are much more likely to take a plea (even though you are completely innocent).

    If the prosecutor doesn't have proof beyond a reasonable doubt that it wasn't justified then there is no reason to believe they will prevail in court and you should never be charged nor put in that jeopardy. The statute says you ARE IMMUNE - it needs to be their burden to prove otherwise if they want to charge you and have a criminal trial.
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  8. #37
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    Quote Originally Posted by TitleIIToyLover View Post
    So, if I understand what you are saying...you want all GGs arrested and have to prove their innocents in court? I'm truly confused.
    If that's what he meant, then I strongly disagree! Burden of proof should always fall to the government that a crime has been committed, period!
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  9. #38
    Super Moderator Rvrctyrngr's Avatar
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    HB 245, companion bill to SB 128 is scheduled for the House CJ subcommittee on Wednesday, Feb 22 at 0830

    http://www.myfloridahouse.gov/Sectio...mmitteeId=2921
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  10. #39
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    -BH

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  11. #40
    Super Moderator Rvrctyrngr's Avatar
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    Quote Originally Posted by BeerHunter View Post
    Yup...glad to see it moving.
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