Talk Elections

Immunity- the burden of proof is on the prosecution to show that a homicide is not justified.
Defense- the burden of proof is on the defendant to show that a homicide was justified.

Anyone have any thoughts about this? The common law justification for the presumption of innocence supposedly originates from the saying, "Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit — "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.

To me if a defendant is admitting that he or she killed someone but asserting that this was justified, the claim that the homicide was justified is separate from the claim that the homicide itself occurred. On the latter question the defendant is given the presumption of innocence, "innocent until proven guilty", but on the former question, the homicide victim must be given the same presumption. It should be the obligation of the defendant to prove-in court- that the action was justified. 

The problem with that line of thinking is that the person who was killed is already dead regardless of what the court rules. Granting the dead person the presumption of innocence is meaningless. The penalty has not been imposed by the court.

I'm not much of a softie on justice issues in general but how can you convict someone without actually proving they committed the crime? Killing in self-defense is not a crime.

It's not meaningless because the dead person is still entitled to justice. Otherwise, why have any punitive aspect to the penal system, at all?

It goes back to the reasoning behind presumption of innocence. The burden of proof lies on the one who affirms. A person who says that the killing of someone else by them was justified is the one affirming, so that person should have the burden of proof.

Defense. Immunity makes the murder charge totally unworkable.

I think it is a mistake to separate the action from the justification, since you could do this with everything. Rape is an obvious point, since the act is not illegal if it is justified. If killing someone can be ok, obviously pretty much anything can be ok. So by having this system you would essentially shift the burden of proof to the defendant in general.

What do you consider to be justifiable rape? I actually cannot think of any examples. The closest would be something like, "I raped my girlfriend because, there were some people threatening to kill my family if I did not do it, for their enjoyment." but even that would only be a mitigating factor if the girlfriend nonetheless wanted to press charges.

I think you misunderstood me. Having sex with someone can be justified. So I could go "I admit I had sex with this woman, but it was justified sex." Prosecution goes, "fine, but it's up to you to prove that you were justified"

I always support the most expansive interpretation possible of the rights of the accused.

Right, but having sex with someone does not prove that you have caused them any harm. Killing someone, you have caused them the ultimate harm. The two could not be more different.

A better example is burglary, since if you prove that I stole property from you, you have shown that I have caused you harm. If I then claim "there were some people at my house who were threatening to kill my family if I did not steal for you," should it be my obligation to prove that there were indeed such people making such a threat, or should it be your obligation to prove that there were no such people?

Or even better... if I claim that the property was mine to begin with, since you stole it from me last week, is the burden of proof on me or you?


In the case of justifiable homicide though, the person being killed is the one being implicitly accused, on the question of justification.

Well, not necessarily. "Yes, I have your wallet, but you gave it to me so I'm justified in having it." "Well, it's up to you to prove that you're justified"

I don't see that as so unreasonable. First of all, why would I have your wallet, with your driver's license, current credit cards, club discounts, medical card, et cetera, picture of your girlfriend, et cetera, in my possession, and refuse to give it to you, although you asked for it? If you claim that I took it from you, and I claim you gave it to me permanently, and refuse to return it, I don't see how it's so unreasonable that a neutral third party would put the burden of proof on me. There are legal documents and many other well-established customs assigning the contents of the wallet to you, whereas there are no contracts (unless I could produce one stating transfer of the wallet in exchange for other property) assigning it to me.

If a person can take the property of another and then assert that it was given to them freely, when the person who holds title to that property is asserting that it was taken without their permission and wants it back, what is the point of contracts? What is the point of receipts? It is virtually impossible for the original owner to prove that he or she didn't give it freely. It is up to the person holding the property to produce titles, contracts, and receipts showing that ownership was properly transferred to them.