Thursday, January 30, 2014


Since the much-ballyhooed enactment of Florida’s “Stand Your Ground” law (SYG), I have received numerous calls from newspeople who wanted me to voice my opinion on various cases where someone has gotten shot or stabbed. They seem to think that SYG somehow makes dramatic changes to the dynamics of how a case is tried before a jury. The law has, of course, been modified, but as far as how a case is tried to a jury, there should be little difference from the way it was tried before SYG. Here is a somewhat oversimplified explanation:

In the context of a jury trial, SYG simply means that the defendant doesn’t have to back up or try to run away before using deadly force in self-defense. Formerly the defendant had a duty to retreat if he could do so safely. In many armed confrontations retreat is not an option, and the law prior to SYG allowed you to stand your ground in such situations. I don’t know many people who can outrun a bullet.
The  major change that SYG made in Florida’s self-defense law deals with pretrial matters. It gives the defendant the option to try to prove to a judge before trial that he acted in self-defense. Before trial the defendant can file a motion to dismiss the case and get it dismissed if he can prove he acted in self-defense. Unless the defendant has an ironclad self-defense case, he would be foolish to file such a motion. At an SYG hearing the burden of proof is on the defendant to show that he acted self-defense. At a jury trial the burden of proof is on the state to disprove self-defense.  In order to prove that he acted in self-defense, he has to give the state a pretrial preview of his defense strategy, and if he loses, the state is prepared to meet his defense at trial. Additionally, the defendant will more than likely have to take the witness stand and be cross-examined at an SYG hearing. The defendant has to prove that he was in fear of death or great bodily harm, and the only sure way to do that is to take the stand and testify that you were in fear. If you lose the SYG hearing, the state now has the transcript of your testimony at the hearing which they can use against you at trial. 

In the final analysis, SYG is more something for reporters and pundits to emote over than anything else. In many cases where you hear the media bellowing about SYG, it is a non-issue. Take the Zimmerman case for instance. Zimmerman’s defense was that he was flat on his back with Martin sitting on top of him beating him to death. If Zimmerman’s defense was true, under pre-SYG law he had no duty to retreat. Although a lot of ink was spilled over SYG in the Zimmerman case, it was really a non-issue for that case.

Having said all that, I feel compelled to close by saying I think SYG is a bad law because it gives people a license to kill in situations where killing isn’t necessary. I worked a lot of homicides in my 32 years as a prosecutor and defense attorney, and I saw lots of killings which were legally justified. I also saw lots of legally justified killings which could have been avoided if the killer had used better judgment. A justifiable homicide is not always a necessary homicide. SYG will increase the number of justifiable homicides which are not necessary homicides.
My advice to anyone is that if you’re attacked and you can safely retreat, do so. It may damage your self-image as macho guy, but it will save a life (maybe yours). In the words of a martial arts instructor I once knew “If somebody comes after you, walk away. If he follows you, run. If he catches you, kill him.”

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