That Odd Duck, Ohio: Self-Defense as an Affirmative Defense (Kind Of)

by Andrew Branca

Of the 50 states in the US, 49 of them require the State to disprove a defendant's claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence. Why is Ohio Such an Odd Duck on the Burden of Proof for Self-defense? To understand this curiosity it is necessary to cover a little history and to really understand what is meant by the phrase "burden of proof." Let's do them in reverse order.

Most of us know the phrase "burden of proof" from our understanding—borne of movies and TV dramas—that the prosecution bears the burden of proof to prove the defendant guilty beyond a reasonable doubt.

And that's true. But it also a very superficial understanding of how the law actually allocates the "burden of proof." So, let's dig a bit deeper.

The burden of proof actually involves two separate elements. The burden of production, and the burden of persuasion.

The Burden of Production

Much of a court's function is to act like a gatekeeper in terms of controlling what kinds of evidence and arguments can be brought before a jury. A courtroom without rules would be even more chaotic than the real world outside. In the Zimmerman case we saw a great many bizarre and reversible evidentiary rulings. But this post is focused not on the evidence, but the arguments.

Before a legal argument can be made before the jury it must have some foundation, some rationale for why it is relevant to the case and will help the jury resolve the conflict. This is called the burden of production. The American legal system is an adversarial one by design, however, so to say that an argument requires some foundation, and that one side or the other bears the burden of production, begs the question of which side that might be.

Quite intuitively, it is the party who wishes to introduce a legal argument before the jury that bears the burden of production—that is, of producing enough evidence to justify letting the argument be raised. In the case of a defendant who wishes to argue self-defense, this means that it is the defendant who bears the burden of production on the issue of self-defense.

This doesn't necessarily mean that the defendant must literally produce evidence of self-defense. Often the evidence necessary to meet the burden of production comes from other sources, even from the prosecution themselves (when the defendant is lucky enough to have an honest prosecution that doesn't conceal exculpatory evidence).

What it does mean, however, is that if the evidence of self-defense is not produced, from whatever source, it is the defendant wishing to argue self-defense who pays the price—his is denied the opportunity to argue self defense to the jury. Indeed, the jury will not hear the words "self-defense" uttered during the trial.

Fail to Meet the Burden of Production and the Jury Will Never Hear "Self Defense"

If you're a law-abiding citizen who legitimately used force in self-defense, this can create an awkward situation. Because you acted in self-defense, you've likely admitted to the use of defensive force. So, now the State has a "victim" — the person you used force against —they have a defendant who has confessed to using that force against the "victim," and pretty much the only legal defense to justify that use of force has been taken off the table because the defendant failed to meet his burden of production.

Oops. Now might be a good time to travel back in time and erase all that prior bad conduct that could be used to impeach you with great effect when you necessarily take the stand to ensure that you meet your burden of production. Oh, you've been a good boy? No worries then.

In most cases of legitimate self-defense, however, the facts as gathered by the investigative officers are sufficient to meet the defendant's burden of production on self-defense without the defendant needing to do more than just sit this part of it out.

The Burden of Persuasion

Once the burden of production has been met, and the issue is properly before the court, a decision must be made on who bears the burden of persuasion—that is, the burden of persuading the finder of fact (usually the jury) of the truth of the proposition.

In terms of the elements of the crime charged we saw that the State bore the burden of producing enough evidence to properly get the matter before the court. The State also bears the burden of persuasion on each and every element of the crime charged, and to the standard of evidence of beyond a reasonable doubt.

This means that if the jurors possess a reasonable doubt as to any single one of the elements of the crime the State loses and the defendant is to be found not guilty. So, in that case the State bears the entirety of the burden of proof—both the burden of production and the burden of persuasion.

The Burden of Persuasion: Affirmative Defenses and Self-Defense

But what about self-defense? Does the defendant similarly retain the burden of persuasion on top of the burden of production?

For much of modern legal history, the answer was, yes. Self-defense was one of a number of legal defenses termed “affirmative defenses.” Affirmative defenses are a different beast than what are called negating defenses. With a negating defense, the defendant argues that an element of the crime has been negated—for example, he was charged with theft of property in excess of $500 value, but in fact the property is worth less than $500.

With an affirmative defense, on the other hand, the defendant essentially concedes that the State can prove every element of the charge beyond a reasonable doubt, but that he should nevertheless not face criminal sanction for his conduct. He is arguing, essentially, that his conduct was justified or privileged despite being nominally illegal.

Classic affirmative defenses that are still treated as affirmative defenses include necessity, coercion, entrapment, insanity, and intoxication.


Placing the Burden of Persuasion on the State is the Right Thing To Do

The practical dynamics of having the State bear the burden of persuasion, beyond a reasonable doubt, on self-defense demonstrate that this is the proper approach.

Criminals who are trying to hide behind a false claim of self-defense are readily dispossessed of that shield. Even well intentioned law-abiding people who only accidentally violated the law of self-defense can be readily sanctioned by the State, if it so chooses.

It is only where the claim of self-defense begins to look and feel genuine does the State begin to run into real hardship in getting a conviction. It’s in those cases where there is sufficient evidence in support of each of the five elements of self-defense to raise at least a reasonable doubt about the State’s claim that it has disproven even just one of them, that’s where the State struggles.

And those are precisely the cases the State ought to struggle in their efforts to lock a man in prison for the rest of his life. Those are the cases where the State lacks compelling evidence that the defendant's use of force was anything other than genuine self-defense, despite all it's resources and investigators and depositions and forensic evidence and court room theatrics and authority. If those tools are inadequate for the State to meet its burden of persuasion on self-defense, then the defendant rightfully ought to be acquitted.

Except, That Is, for Ohio

Those are the cases in which the defendant ought to be acquitted, that is, with the exception of defendants in Ohio. The Buckeye state remains the last in the country to retain the old model of self-defense as a true affirmative defense, keeping the burden of persuasion for self-defense on the defendant, by a preponderance of the evidence. Simply because it failed to flow, as did every state, with the historical and morally appropriate shift of the burden of persuasion n self-defense to the state. This sad state of affairs makes Ohio a true laggard in properly protecting the due process rights of its residents.

(As a side note, considerable confusion can arise because some of the states that have shifted to place the burden of persuasion on the State continue to refer to their self-defense laws as "affirmative defenses." This is true only in a historical sense, not in terms of how the self-defense laws are applied and how the burden of persuasion is allocated.)

Expect to See Burden of Persuasion as Emerging Front in Self –Defense Wars

As the law of self-defense has evolved over the last few decades to increasingly favor the law-abiding citizen against the criminal—via the adoption of Stand Your Ground, Make My Day, presumptions of reasonableness, civil and criminal immunity—the political forces that favor the criminal have become disgruntled.

After decades of failed effort trying to strip the law-abiding of the most efficient mechanical means of self-protection—the firearm—they have now begun to turn their resources to engage in an asymmetrical war against self-defense itself.

Sure, you can keep your guns, they concede grudgingly. But you can use it in self-defense only if you first flee from every thug you come across. Sure, carry concealed, but if you ever use that gun in self-defense we'll exhaust every material asset you own in a criminal prosecution, we’ll do our best to lock you in jail for the rest of your life, we'll get the Federal justice department on your back, and we'll sue you civilly for every dime you might have left.

Efforts to re-shift the burden of persuasion back onto the defendant are sure to be one of the most vigorous fronts in this emerging war, just as today we’re seeing attacks launched nationwide against Stand-Your-Ground laws, also the majority legal position across the United States.

Prepare yourselves.

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