If the judge rules that defendant affirmed self defense by preponderance of the evidence, she will give the jury those instructions. The jury must find it was not self defense beyond a reasonable doubt.

That is my understanding of Florida law from what I have been reading.

Even if he started the provocation if he could not retreat, he can assert self defense.

He was getting his information from the talking heads on TV, presumably Faux News, so I had a bit of hesitation to trust him.


Could you clarify "judge rules that defendant affirmed self defense by preponderance of the evidence", please?

If judge agrees she gives jury instructions to consider self defense which would work for 2nd degree murder and manslaughter.

Then jury must decide if it was self defense or not. Standard is beyond a reasonable doubt that it was not self defense.

And yes it is a Florida thing and seems to be on the liberal side in terms of favoring the defendant.

In Florida (and some other jurisdictions), the defendant only has to meet a burden of going forward. That is, the defendant has to offer evidence that, if true, would support a claim of self-defense. The defense does not have to prove the truthfulness of that evidence. Rather, the state has the burden of proving, beyond a reasonable doubt, that the defendant did not act out of self defense.

Here is a statement from a leading Florida case on self-defense: "the law did not require defendant to prove his justification of self-defense to any standard measuring an assurance of truth. He did not have to prove the exigency of self-defense to a near certainty (reasonable doubt) or even to a mere probability (greater weight). His only burden was to offer additional facts from which it could be true, that his resort to such force could have been reasonable."
Murray v. State, www.4dca.org/Sept%202006/09-13-06/4D05-3691.op.pdf.

For normal self defense you can use a appropriate level of force to stop an attack but not an excessive level. For example if an aggressive individual threw a punch at you, you would have the right to use enough force to stop his attack but not kick him repeatedly in the head once he was on the ground or to beat the crap out of him.

In many states, including Florida, you can use lethal self force to stop an attack that would result in serious injury or death. Obviously the attacker has to have the means or the physical advantage to inflict such injury.

I am not an attorney but as I understand criminal law it is the governments job to prove that you broke the law beyond a reasonable doubt. It is not your job to prove your innocence.

Let's assume Zimmerman approached Martin in an aggressive manner and attempted to grab him. Martin would have had the right to resist but not to sit on top of Zimmerman (once he got him on the the ground) and punch him numerous times or to drive his head into concrete.

Much will also depend to how the jurors view the incident. If they put themselves in Zimmerman's shoes and feel that they would have good reason to have feared for their life or health, then they will feel he used legitimate self defense.

The big problem in this case is that we really don't know exactly what happened that night. Without better evidence it is quite likely that Zimmerman will walk. Our legal system is far from perfect.

Say you got a woman who is being attacked and fears the man is attempting to rape her. She's able to pull a gun out of her purse and shoot the man. The bullet happens to pierce his heart, and he dies.

Should that woman then be arrested, charged with 2nd degree murder, and be tried so a jury can decide if she used justifiable force?

You may claim in my scenario that this would no doubt be self-defense. But that's not what you (and many others) are saying. You seem to be suggesting that the matter be taken out of the hands of the police and prosecutors and that a jury needs to make these decisions. I think that's very dangerous and increases the liklihood of innocent people being imprisoned for very, very long sentences.

Am I wrong?

Page 12 if you want to look it up.

"If in your consideration of the issue of self-defense you have a reasonable doubt on the question if whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty."

The burden of proof lies on the prosecution. So if they are 60% sure that Zimmerman was the aggressor, then they should still find him not guilty.

I think the judge would only give that instruction if the judge found that the self-defense claim was on balance supported (not proven) by evidence.

There could be circumstances where a judge would refuse to give the self defense instruction, but they would have to be pretty extreme.

For example, if person A shoots person B with a toy water pistol and person B retaliates by pulling out a real gun and shooting person A and then claims self defense on the grounds that they believed that getting wet would cause them great bodily harm, a judge could (and probably would) make a finding that no reasonable person could have had the belief that getting wet causes great bodily harm and thus would refuse to give a self defense instruction.

However, if person A pulls out a toy water pistol and before using it person B shoots person A with a real gun and claims self defense because they thought person A had a real gun, not a toy, it is more likely than not that the question of self defense would go to the jury. The prosecution would attempt to rebut the claim of self defense by establishing that a reasonable person would have recognized person A's weapon was merely a toy, but unless they could prove that beyond a reasonable doubt, the jury could acquit the shooter.

I appreciate the clarification.

The bottom line is that the jury has to believe you. If they don't, they will find you guilty of at least something.

Self-defense has to be asserted by the defendant, but there is no particular burden generally on how and when.

In some states, there are certain circumstances which will create a presumption of self-defense in the law, which may affect the ability to charge, but if it goes to trial, it's always in the end going to be the jurors' judgments.