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Who has the burden of proof in “stand your ground” cases?

On Behalf of | Jul 11, 2015 | Criminal Defense

What constitutes “self defense” can vary from state to state. Florida is one state that does not impose on people a duty to retreat if they feel seriously threatened with harm by another; put another way, this state allows you to “stand your ground” in the act of self-defense.

If a defendant in a criminal prosecution is able to use the stand your ground defense as an immunity to prosecution, it is up to the prosecution to prove beyond a reasonable doubt that the defendant’s use of force in claimed self-defense was not justified. But this begs the question of how a defendant is able to raise the defense in the first place, a question that the Florida Supreme Court recently addressed in the case of a tourist who unsuccessfully claimed the protection of the stand your ground law during a confrontation on a Florida highway.

The defendant was arrested and charged with aggravated assault with a firearm after pointing a pistol at another driver. In a pretrial hearing to determine whether the defendant would be able to raise the stand your ground defense at trial, the trial court found that he had failed to show by a preponderance of evidence standard that the self-defense claim was justified. The defendant appealed, claiming that it should be the burden of the prosecution in the pre-trial hearing to prove that the self-defense claim was not justified, similar to how the question is addressed during trial.

The Supreme Court decision has upheld the trial court’s ruling that the pre-trial burden of proof to claim the stand your ground rests with the defendant, and not with the prosecution. What this means is that the burden of proof in claiming the stand your ground self defense argument shifts, depending on what stage the criminal case is at:

  • The defendant must prove pre-trial by a preponderance of evidence that he can raise the defense at trial
  • If the defendant prevails in the pre-trial hearing, then the prosecution bears the burden of proof to a “beyond a reasonable doubt” standard that the defendant was not entitled to use the stand your ground law in self defense.

When an how the burden of proof in a criminal trial is something that an experienced criminal defense attorney will be able to assist clients with at all stages of the prosecution of the matter.


Source: Orlando Sentinel, “‘Stand your ground’ defendants must continue to prove immunity, Florida justices say,” Jim Saunders, July 10, 2015