On March 28, Ohio’s new self-defense law went into effect. This important change relates to who has the burden of proof of proving self-defense in a criminal trial when a person accused of a crime asserts that they acted in self-defense. In other words, does an accused have to prove that he or she acted in self-defense or does the state of Ohio have to disprove the accused’s claim of self-defense?

In general, self-defense is an affirmative defense, also known as a complete defense, to a criminal charge. Self-defense can apply to a range of criminal offenses, from misdemeanor assaults to felonious assaults and homicide offenses, such as manslaughter and aggravated murder. When an accused asserts self-defense, he or she is admitting that they committed the act in question, but claim that he or she had a legal justification for doing so, which serves as a defense against criminal prosecution.

Until the recent change, Ohio law placed the burden of proof upon the accused to prove they acted in self-defense. This required the accused to prove the three elements of self-defense at trial: they were not at fault in creating the violent situation; they had a good-faith belief that they were in imminent danger of death or great bodily harm; and that they did not violate any duty to retreat or avoid the danger.

One simple example of this would be if an armed intruder broke into someone’s home in the middle of the night. If the armed intruder pointed his gun at the homeowner and the homeowner shot the intruder, the homeowner would have acted in self-defense. Thus, if the intruder later died and the homeowner was charged with murder (which would be extremely unlikely under this scenario) then the homeowner would assert the complete defense of self-defense to the murder charge. 

Under Ohio’s old law, the homeowner was required to prove all three elements of self-defense before they could be found not guilty of murder: the homeowner did not create the violent situation; the homeowner was in reasonable fear of great bodily injury or death; and the homeowner had no duty to retreat in his or her own home.

Under Ohio’s new law, however, the burden of proof in self-defense cases has shifted to the state. Now, like the law in every other state, the state must disprove self-defense, beyond a reasonable doubt, by showing that the homeowner was at fault in creating the violent situation, the homeowner did not have a good faith belief that he or she was in imminent danger of death or great bodily harm and the homeowner violated any duty to retreat or avoid the danger.

If the state fails to prove any one of those three elements, then the homeowner must be found not guilty because they acted in self-defense.

Making the government prove someone’s guilt is nothing new. Constitutional due process requires that before someone can be convicted of any crime, the government must prove them guilty beyond a reasonable doubt. Whether for or against it, Ohio’s new self-defense law nevertheless appears to reflect this basic fundamental principle of justice.

Larry W. Zukerman is the managing partner and Adam Brown is an associate attorney at Zukerman, Lear & Murray, Co., LPA in Cleveland.

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