The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases

(Submitted to the Ohio Senate Judiciary Committee by Buckeye Firearms Association, for and on behalf of its statewide membership, in support of Ohio Senate Bill No. 180 and House Bill No. 228)

Executive Summary: Under Ohio Revised Code Section 2901.05, a defendant is required to prove all elements of self-defense by a preponderance of the evidence. Recent case law and the development of the status of self-defense strongly suggest that shifting the burden to a defendant in this manner is unconstitutional. Ohio’s burden shifting rule effectively changes the standard of proof necessary for the government to secure a conviction in self-defense cases. Furthermore, Ohio’s current rule severely curtails, if not eliminates, the protections provided by the Fifth Amendment. Ohio Senate Bill No. 180 and House Bill No. 228 provide the necessary changes to ensure those accused of a crime in Ohio receive a fair and just trial. Where there is evidence presented that tends to show a defendant acted in self-defense, these Bills would place the burden back on the prosecution, where it rightly belongs, by requiring the prosecution to disprove at least one element of Ohio’s version of self-defense, beyond a reasonable doubt.

I. Introduction

Ohio is currently the only state in America that requires a defendant in a criminal trial to prove that she acted in self-defense by the greater weight of the evidence.1 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 self-defense beyond a reasonable doubt.2 Ohio’s requirement that the defendant prove self-defense is often referred to in legal parlance as “burden shifting.” The purpose of this article is to explain how Ohio’s burden shifting framework disparages fundamental rights we enjoy in America, including the presumption of innocence, the requirement that the government prove every element of a criminal offense beyond a reasonable doubt, and the right against self-incrimination.

II. “Affirmative” Defenses: Justifiable vs. Excuse Defenses

An affirmative defense essentially affirms all or most of the elements of a specific crime. Generally speaking, affirmative defenses may be separated in two categorical distinctions, justifiable defenses and excuse defenses.3 Self-defense is a justifiable defense because you are completely justified in your proper use of it, the key being under what conditions you may properly use it. By contrast, excuse defenses are simply mitigation factors and such conduct is not commendable, encouraged, or presupposed. Examples of excuse defenses include intoxication, insanity, and duress.4

Currently in Ohio, where deadly force is used, self-defense is a legally justifiable and 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. 5

Currently, in Ohio, there is no duty to retreat in one’s home, business, or personal vehicle, but there is a duty to retreat in other places, even if you have a lawful right to be in those places.6

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. That expectation, and even encouragement, extends from self-defense to defense of another. In fact, persons who defend the life of another, which in many instances includes putting their own life in danger, are often labeled as heroes. 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.7

III. Mental Culpability and the Problem of Defining Crimes

As referenced above, excuse defenses, such as insanity and intoxication, involve mitigation where some factor lessens the culpability of criminal conduct. Mitigation in such contexts are due a lower degree of what has been often called “the guilty mind.” Under the foundational principles of criminal law, crimes have traditionally required both a mental and physical element, otherwise known as mens rea and actus reus respectively. Guilty mind is another way of saying criminal intent and is often associated with older legal terms of art such as “malice” or a “depraved-heart.”

In true cases of self-defense, there is no guilty mind because there is no criminal intent and the act is completely justifiable. Curiously enough, however, where an individual kills another in self-defense, the mental element of Ohio’s murder statute, “purposely,” is satisfied by definition.8 During the later-half of the twentieth century, most states modernized the way they defined crimes by adopting all or part of the Model Penal Code. Thus, the way murder is defined in Ohio creates an inherent problem because unlawfulness, malice, and/or depraved heart under traditional, criminal law theory has been eliminated.9 A serious problem arises legislatively in that Ohio is the only state that has adopted modern definitions of criminal conduct (specifically here mens rea) while keeping the older, burden shifting rule that requires a defendant to prove self-defense by a preponderance. Thus, unlawfulness and malice have been read out of the definition that the prosecution was previously required to prove as elements in murder cases.

IV. Prior Case Law and the Subsequent Impact of ​Heller​ and ​McDonald

Requiring a defendant to prove self-defense in a criminal trial necessarily implicates and tramples on a variety of fundamental rights. In 1983, all but two states recognized the inherent problems involved in shifting the burden of proof in self-defense cases and their laws were changed accordingly.10 At that time, Ohio and South Carolina were the only states that placed the burden of proving self-defense on a defendant.11

There is a variety of case law regarding burden shifting of affirmative defenses. In Patterson v. New York, the U.S. Supreme Court considered whether it was constitutional to require a defendant to prove extreme emotional distress as a mitigation factor to reduce murder to manslaughter. The Court explained in Patterson that:

Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.12

Ultimately, the Court held in Patterson that the affirmative defense of extreme emotional defense did not negate an element of the crime of murder and, therefore, New York could shift the burden of proof of extreme emotional distress to the defendant. Because the affirmative defense of extreme emotional distress was a mitigation to murder, New York could regulate procedure and burdens of proof as it desired. The theory was that affirmative defenses were gratuitous and did not have to be recognized by a state at all.13

After Patterson, the U.S. Supreme Court upheld Ohio’s burden shifting framework in the 1983 case, Martin v. Ohio. The issue was whether placing the burden of proving self-defense on a defendant violated due process by relieving the government of proving all the elements of the crime as charged. Martin argued that “unlawfulness” was an inherent element of criminal intent. In a curiously terse opinion delivered by Justice White, the Court rejected Martin’s argument in favor of allowing states to define crimes as they wished.14 The Court’s 5-4, split decision was based, in part, upon its holding and logic as stated in Patterson.15

The Court in Martin reasoned that since it previously upheld placing the burden of other affirmative defenses on a defendant, such as extreme emotional distress and insanity,16 it was completely logical and just to do so with self-defense.17 In this way, the Court compared self-defense, a justification defense, to extreme emotional distress and insanity which are excuse defenses. It did not occur to the majority of the Court, at that time, that they were making an apples-to-oranges comparison. Self-defense is a complete justification while insanity and extreme emotional distress are mere mitigation. Despite Justice Powell’s dissenting admonishment that the Court’s holding was improperly formalistic and at odds with precedent,18 self-defense was relegated and lumped in with the rest of the affirmative defense lot. Over two decades would pass before the U.S. Supreme Court would give the issue of self-defense another hard look.

Twenty five years after Martin, the right to possess firearms and the associated issue of self-defense came before the bench of the U.S. Supreme Court in District of Columbia v. Heller. In 2008, the Court in Heller held that “the Second Amendment conferred an individual right to keep and bear arms.”19 For the majority, Justice Scalia explained that the Second Amendment codified a pre-existing right to bear arms for lawful purposes, with self-defense at its core, that predates our U.S. constitution. The Court went on to discuss the preeminence of the individual right to self-defense, explaining that self-defense “was the central component of the [Second Amendment] right itself.”20 The Court further recognizing self-defense as an “inherent right,” quoting St George Tucker who explained that “ ‘[t]he right to self defence is the first law of nature’ ”21

In 2010, the U.S. Supreme Court affirmed Heller in McDonald v. City of Chicago and held that the Fourteenth Amendment Due Process clause incorporates the Second Amendment and is mandated upon the states.22 Two years after Heller, the Court in McDonald further described the preeminent status that self-defense enjoys: “[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present.”23

Arguably, the basic effect of Heller and McDonald is the U.S. Supreme Court’s recognition of self-defense as a “principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental.” By the Court’s own instruction in Patterson, as noted supra, Martin could easily be overturned, not only on Due Process grounds, but on Fifth Amendment grounds as well. Self-defense is not a gratuitous defense, it is basic fundamental right. Self-defense should therefore not be lumped in and treated the same as other affirmative defenses. Since, Heller and McDonald, the issue as presented in Martin has not yet been certified to the U.S. Supreme Court for reconsideration.

V. Ohio’s Burden Shifting Rule and Due Process Concerns

Under its burden shifting framework, Ohio currently requires that the accused in a self-defense case prove that she acted in self-defense by the greater weight of the evidence.24 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 holdout 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.

It has long been held as a fundamental notion of justice in this country that before someone can be convicted of any crime, the government must prove every defining element of a crime beyond a reasonable doubt.25 This standard, by which we judge guilt or innocence, is deeply rooted in our history and tradition, the principles of which date back before the founding of our country in the Continental legal systems of Europe.26 In fact it was in 18th Century England where Sir William Blackstone laid down the oft quoted maxim “It is better that ten guilty persons escape than that one innocent suffer.”27

Our Founding Fathers knew of the dangers of taking someone’s liberty away and set up our government in a way to provide protections against false or wrongful convictions. Proof beyond a reasonable doubt was the standard of measure to put the Blackstonian principles to work and protect against convicting innocent persons. The requirement that the government must prove criminal conduct, regarding each and every element of a crime, by proof beyond a reasonable doubt is a principle aspect of due process and is further guaranteed by our U.S. Constitution.28

In Ohio juries are given model instructions on what “reasonable doubt” means before they begin deliberations on criminal charges. Jury instructions that define reasonable doubt are mcontained the in Ohio Revised Code, and read:

‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.29

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. In a practical sense, when an affirmative defense is asserted, 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 Ohio, once there is some evidence that tends to show a defendant acted in self-defense (the burden of going forward), she then is entitled to have a jury instruction on self-defense. Even though she is entitled to the jury instruction on self-defense, the defendant under Ohio’s rule is required to prove that she acted in self-defense by a preponderance of the evidence (the burden of persuasion). A preponderance of the evidence is also known as the greater weight of the evidence, i.e. anything more than half.

In this way, as a jury deliberates and weighs the evidence, if the scales tip ever so slightly in favor of the prosecution on the issue of self-defense, so long as the burden of the other elements of the crime proper have been met, the jury must convict. That means even if 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. Recall that self-defense is a complete justification to criminal conduct. In this way, the yardstick by which we measure guilt or innocence has changed. Gone is proof beyond a reasonable doubt. By proxy, the government has essentially convicted an Ohio 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.

The following hypothetical illustrates the point:

John Doe ambushes, assaults, and tries to kill Jane Doe in a parking lot. Jane has a firearm on her person. Actually and reasonably fearing her life is imminent jeopardy, with no safe way to retreat, Jane shoots John, killing him. No other person witnesses the incident. A police investigation ensues and for whatever reason (reasons of which could be varied and complex) the government doesn’t believe Jane and she is charged with Ohio’s version of second degree murder. Jane does not deny she shot and killed John but does claim she acted in self-defense. In effect, Jane is affirming the elements of Ohio’s murder statute, R.C. 2903.02: “No person shall purposely cause the death of another or the unlawful termination of another's pregnancy.”30

Jane’s admission that she shot and killed John is enough for the government to prove the elements of murder. This is why self-defense is labeled an affirmative defense. The problem with this scenario, and what the police and prosecution don’t know, is that Jane is actually innocent and justified under Ohio’s definition of self-defense. Gone is the presumption of innocence, however, and Jane now has to prove her innocence in Ohio.

Jane hires the best lawyer she can find to prove that she acted in self-defense. Jane has to liquidate her retirement account and put a second mortgage on her house to finance her legal expenses. The trial begins and evidence comes out that tends to show that Jane acted in self defense. The prosecution and defense present their cases. Jane is forced to waive her 5th Amendment rights and take the stand to prove she acted in self-defense. Both sides rest. The judge gives the jury instructions, including the instruction as to self-defense. The jury retires to deliberate.

During their deliberations the jury struggles with the two standards of proof they must apply, one beyond a reasonable doubt (to the elements of the crime) and the other a preponderance (on the issue of self-defense). The issue of self-defense is a close call for the jury, and the jury ultimately decides that while Jane came very close to proving her act was in self-defense, it didn’t amount to over 50% of the weight of the evidence. The foreperson of the jury announces their verdict: guilty. Jane’s life has been destroyed.

VI. Ohio’s Burden Shifting Rule and the Fifth Amendment

In addition to changing the standard of proof necessary to convict, Ohio’s Burden Shifting Rule also implicates and tramples on Fifth Amendment rights. In medieval Europe, during what is known as the inquisition, individuals accused of crimes were forced to testify, and in many instances tortured to obtain confessions. Our Fifth Amendment to the U.S. Constitution protects each and every citizen against self-incrimination and from being compelled to be a witness against themselves in a criminal trial.

The Fifth Amendment to the United States Constitution provides, in pertinent part, that “No person compelled in any criminal case to be a witness against himself....”31 The protections provided by the Fifth Amendment have also been rephrased as the right to remain silent. It is settled law that “the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not b[y] coercion prove a charge against an accused out of his own mouth.”32

In 1973, the Ohio Supreme Court memorialized the inherent problem of Ohio’s burden shifting rule as it pertains to the Fifth Amendment in State v. Seliskar:

Inasmuch as self-defense is an affirmative defense requiring proof by a preponderance of the evidence, it is incumbent upon a defendant claiming self-defense to offer evidence tending to establish that defense, including, if necessary, his own testimony. If a defendant cannot provide evidence on the issue of self-defense other than his own testimony, then, in order to avail himself of the defense, he must testify. In such event, the choice is that of the defendant, and, once he has decided to rely on self-defense and is required by the circumstances to testify in order to prove that defense, he necessarily must waive his constitutional right to remain silent.33

There is nothing more that needs to be said outside of what was clearly recognized by the Ohio Supreme Court in Seliskar. It is clear, that where Ohio’s laws shift the burden of proving self-defense on a defendant, those very laws severely curtail, if not eliminate, the intended protections of the Fifth Amendment. The fact that this is occurring in Ohio should not and cannot be overlooked, ignored, or discounted.

VII. Other Problems Associated with Ohio’s Burden Shifting Rule

Another inherent and complex problem under Ohio’s burden shifting rule is the economic impact upon indigent or low-income citizens. Essentially, Ohio citizens must bear the economic burden associated with the legal costs of proving their innocence in self-defense cases. These legal costs are not recouped upon an acquittal. While this article does not attempt to explore actual hard data of said economic impact, common sense dictates that placing the burden of persuasion on a defendant who is supposed to be presumed innocent is unfair and likely has a disparate impact upon low-income individuals.

VIII. Conclusion

In conclusion, Ohio’s burden shifting frameworks needs to be changed for individuals to receive a fair trial in self -defense cases. Self-defense is a natural, pre-existing right of the first order and it should never be deemed a “gratuitous” or second-class defense by any state. Among the problems associated with Ohio’s current law is a severe curtailing and disparagement of fundamental rights we enjoy in America. If the issues of burden shifting as presented in Martin v. Ohio were relitigated today, especially in the wake of Heller and McDonald, there is a very strong likelihood that we would have a different result. In sum, Ohio’s burden shifting framework creates a chilling effect on self-defense, tramples on the presumption of innocence, renders the Fifth Amendment effectively meaningless, and creates an end-around to the government's burden of proof beyond a reasonable doubt.

Ohio Senate Bill No. 180 and House Bill No. 228 solve the inherent problems of shifting the burden of persuasion to a defendant asserting self-defense in criminal trials. Under these Bills, 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. The government would not be required to disprove all elements of self-defense. The language in these Bills adequately balance the State’s interests while providing the necessary safeguards to protect the rights of our citizens in the State of Ohio.

Authored by: ​Ronald J. Lemieux, Esq., Legal Counsel for Buckeye Firearms Association. Lemieux is an attorney, licensed to practice law in the State of Ohio. Mr. Lemieux handles a wide range of legal matters including criminal defense, civil litigation, domestic relations, and business transactions. For more information, visit:

Disclaimer: This article is opinion oriented and for informational/legislative purposes only. This article is not intended to constitute legal advice in any respect and/or to be acted upon in any such regard. Please consult an attorney for legal advice of any kind.

1See State v. Hill, 8th Dist. Cuyahoga No. 85320, 2005-Ohio-3569, ¶ 26 (asserting that “Even though Hill is correct in asserting that Ohio is the lone hold out in placing the burden of proving self-defense on the accused, this court is not the proper vehicle for change").
2 See United States v. Head, 707 F.3d 1026, 1032 (8th Cir.2013).
3 See John Quigley, The Need To Abolish Defense to Crime: A Modest Proposal to Solve the Problem of Burden of Persuasion, Vermont Law Review, 14 Vt. L. Rev. 335 (Winter, 1990).
4See Id.
5State v. Wright, 6th Dist. Lucas No. L-16-1053, 2017-Ohio-1225, ¶ 27; See also State v. Jackson, 22 Ohio St.3d 281, 283, 490 N.E.2d 893, 896 (1986).
6State v. Williford, 49 Ohio St.3d 247, 250, 551 N.E.2d 1279, 1282 (1990); State v. Peacock, 40 Ohio St. 333, 334 (1883); Graham v. State, 98 Ohio St. 77, 79, 120 N.E. 232, 233 (1918); R.C. 2901.09.
7See United States v. Taveras, 570 F.Supp.2d 481, 493 (E.D.N.Y.2008) (“Self defense has its roots in natural law and was established as a legal defense by a 1534 English statute”).
8 See R.C. 2903.02(A).
9See Goodlove v. State, 82 Ohio St. 365, 372, 92 N.E. 491 (1910), overruled in part by State v. Schaeffer, 96 Ohio St. 215, 117 N.E. 220 (1917)( where, in 1908, an indictment charging murder in Ohio read that the defendant “did unlawfully, purposely, and of deliberate and premeditated malice make an assault, in a menacing manner, with intent, him, the said Frank McCormick, unlawfully, purposely, and of deliberate and premeditated malice to kill and murder”).
10Martin v. Ohio, 480 U.S. 228, 236, 107 S.Ct. 1098, 1103, 94 L.Ed.2d 267 (1987).
11See Id.
12Patterson v. New York, 432 U.S. 197, 201–02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977)(internal quotations omitted).
13See Patterson, 432 U.S. at 209, 97 S.Ct. at 2326 (“To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate”).
14Martin, 480 U.S. at 233-36, 107 S.Ct. at 1101-03.
15Martin, 480 U.S. at 241, 107 S.Ct. at 1105–06.
16See Leland v. State of Or., 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); See Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976).
17See Martin, 480 U.S. at 236, 107 S.Ct. at 1103.
18See Martin, 480 U.S. at 241, 107 S.Ct. at 1105–06 ( Justice Powell arguing for the dissent that “I agree, of course, that States must have substantial leeway in defining their criminal laws and administering their criminal justice systems. But none of our precedents suggests that courts must give complete deference to a State's judgment about whether a shift in the burden of proof is consistent with the presumption of innocence. In the past we have emphasized that in some circumstances it may be necessary to look beyond the text of the State's burden-shifting laws to satisfy ourselves that the requirements of Winship have been satisfied. In Mullaney v. Wilbur, 421 U.S. 684, 698-699, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975) we explicitly noted the danger of granting the State unchecked discretion to shift the burden as to any element of proof in a criminal case...Because our precedent establishes that the burden of proof may not be shifted when the elements of the defense and the elements of the offense conflict, and because it seems clear that they do so in this case, I would reverse the decision of the Ohio Supreme Court”); See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 1882, 44 L.Ed.2d 508 (1975).
19 D.C. v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
20Heller, 554 U.S. at 599, 128 S.Ct. at 2801(emphasis in original).
21Heller, 554 U.S. at 606, 128 S.Ct. at 2805.
22McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
23McDonald, 561 U.S. at 744, 130 S.Ct. at 3023.
24 R.C. 2901.05
25In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)(holding that “reasonable-doubt standard of criminal law has constitutional stature and that juveniles, like adults, are constitutionally entitled to proof beyond
reasonable doubt when they are charged with a violation of a criminal law”).
26 See John Quigley, The Need To Abolish Defense to Crime: A Modest Proposal to Solve the Problem of Burden of Persuasion, Vermont Law Review, 14 Vt. L. Rev. 335 (Winter, 1990).
27 Sir William Blackstone, The Commentaries of Sir William Blackstone, Knight, on the Laws and Constitution of England, 463 (Am. Bar Ass'n 2009) (1769).
28In re Winship, 397 U.S. at 358, 90 S.Ct. at 1068.
29 R.C. 2901.05(E)
30 R.C. 2903.02(A)
31 U.S. Constitution, Amendment V
32Malloy v. Hogan, 378 U.S. 1, 7–8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964)
33State v. Seliskar, 35 Ohio St.2d 95, 96, 298 N.E.2d 582, 583 (1973)(internal citations omitted).

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