Should Ohio pass a stand-your-ground bill? Yes, because current law is inadequate

Editor's Note: The following article appeared in the Columbus Dispatch on April 22, 2018. Republished with permission of the author.

Ohio is the only state in America that requires a defendant in a criminal trial to prove that he or she acted in self-defense by a preponderance of the evidence. Preponderance of the evidence means anything more than half. Under federal law and in the great majority of states, as long as there is some evidence to support a claim of self-defense, the government bears the burden of disproving at least one element of self-defense beyond a reasonable doubt. Ohio’s requirement that the defendant prove self-defense is often referred to in legal parlance as “burden-shifting.”

Currently in Ohio, where deadly force is used, self-defense is a legally justifiable and a complete defense where the defendant proves:

(1) that he was not at fault in creating the situation;

(2) that he had reasonable grounds to believe and an honest belief that he was in immediate danger of death or great bodily harm and that his only means of escape from such danger was by the use of deadly force, and;

(3) that he did not violate any duty to escape to avoid the danger.

When faced with a true threat that puts your life at imminent risk, we, as a society, expect that you, as a lawful citizen, will defend yourself, even if such defense includes deadly force. Self-defense is a natural right that cannot be given or taken away — it is an inherent right by the simple virtue of being alive. Burden-shifting causes several inherent problems that fly in the face of our notion of justice and liberty in this country. Most notably, burden-shifting under Ohio’s rule changes the standard of proof upon which innocence or guilt hinges in self-defense matters. This change is a due process concern of the highest order and should not be ignored.

The problem with Ohio’s current burden-shifting rule is that a defendant in a self-defense case is necessarily affirming the existence of all or most of the elements necessary for the government to prove an assault or homicide. That is why self-defense has been labeled an affirmative defense. In a practical sense, this means that when self-defense is asserted in a criminal trial, the prosecution can rest on its laurels because it need not go to any great lengths to prove the elements of the crime as charged. In this way, as a jury deliberates and weighs the evidence in a trial, if the scales tip ever so slightly in favor of the prosecution on the issue of self-defense, the jury must convict so long as the burden of the other elements of the crime proper have been met. That means even when the jury finds the weight of the evidence on the issue of self-defense is 50-50, for and against, the jury is required to find the defendant guilty.

Thus, what has occurred in this instance is that proof beyond a reasonable doubt is replaced with a preponderance of the evidence, and the yardstick by which we measure guilt or innocence has changed. Gone is proof beyond a reasonable doubt, which is the constitutionally mandated burden the government must meet to obtain a conviction. By proxy, the government has essentially convicted a citizen by a lower standard of proof. To say otherwise is to engage in a cat-and-mouse game of semantics and procedure leaving a defendant stripped of substantive rights.

House Bill 228 solves the inherent problems of shifting the burden of persuasion to a defendant by placing it back on the prosecution where it rightly belongs. Under this bill, as long as there is some evidence presented which tends to show the defendant acted in self-defense, the government would have to disprove at least one element of Ohio’s version of self-defense beyond a reasonable doubt.

Ronald Lemieux is a Cleveland attorney who works with and supports Buckeye Firearms Association.