GUN LAW UPDATE
Written by Moses & Rooth Attorneys at Law on January 27, 2017
Florida’s controversial stand your ground statute may be getting an update. The “stand your ground” law allows people to use deadly force when they feel it is necessary to prevent death or great bodily harm and they do not have a duty to retreat from this perceived threat. Currently the law requires the defendant to prove that they should be shielded from prosecution and hearings are held where a judge makes a pre-trial determination as to whether or not the defendant has shown that they are immune from prosecution. The Florida Legislature is considering changing the burden of proof and requiring the prosecution to prove beyond a reasonable doubt that this immunity from prosecution should be denied. The proposed statute:
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof beyond a reasonable doubt is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
The government would be required to prove beyond a reasonable doubt that the defendant was not justified in their actions rather than the defendant proving that they were justified. This would be a major shift in how these types of cases are litigated and would maintain the presumption of innocence at these hearing once self-defense immunity has been raised.
In addition to shifting the burden of proof, the Judicial Committee also backed an amendment that would make the testimony at a “stand your ground” hearing inadmissible at trial if the self-defense claim is denied by the court. Currently the prosecution can use any statement made by a defendant in trial and this potential change to the law would prevent that from occurring. This would allow the defendant to testify at a stand your ground motion but not give up the right to remain silent at a criminal trial.
If you are interested in following the progression of SB 128, click here