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2nd amendment / gun discussion thread: Keep it in here

Discussion in 'Politics' started by LogrusMage, Nov 20, 2008.

  1. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    Read up on affirmative defenses, buddy.

    Source
     
  2. Joe's Nemesis

    Joe's Nemesis High Score: 2,058 Prestige

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    Don't have to. I know what they are. I do not like them nor do I think they appropriate for the American legal system. Hence, my comment about twisted logic.
     
  3. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    You don't think it's appropriate for someone to be able to present evidence in their own defense?

    Or is it that you don't think people should have to prove their arguments? The Court should just blindly accept whatever the defendant says? "Yeah, I did it, but it doesn't matter." "Oh, okay, fine."?

    You have a pretty screwed up view of the law. You simultaneously want to be able to claim self-defense, but don't like how they do it. How about the insanity defense? That's an affirmative defense. Should people just be able to say they're insane and we don't get to challenge that, either?
     
    Last edited: Feb 25, 2018
  4. Invictus

    Invictus Totally Sirius

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    Didn't know when you admittedly killed someone the other person was first assumed as a criminal regardless what was proved in court. Might need a new law book.

    After all. Assumed innocent guilty works nor for the person killed, but the person who admitted an illegal act which is only considered legal as a proved in court exception.
     
  5. Chengar Qordath

    Chengar Qordath The Final Pony Prestige

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    I'm really not following the logic here. Hasn't the defendant has already conceded that they killed the person in question by making a claim of self-defense? Why would the prosecution have to prove a fact that isn't in dispute?
     
  6. Invictus

    Invictus Totally Sirius

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    Because in criminal law you have to prove it regardless of what the person affirmed or else it's not beyond reasonable doubt and can easily be overturned in higher courts if the defense claims it. It will always fall on the prosecution to prove there was a crime if it goes to court. You don't assume it was proved and move on.
     
  7. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    Because it's not the same as a confession and plea bargain.
     
  8. Joe's Nemesis

    Joe's Nemesis High Score: 2,058 Prestige

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    Nope. Let me illustrate. I served Jury Duty one time and the judge, after telling a quick overview of the case, asked all the potential jurors, "Who here now believes he's guilty?" No one raised their hand. He then asked, "Who here believes he is innocent." Again, no one raised their hand. Finally, he asked, "Who here needs to hear more?" Everyone raised their hand. He complemented everyone on their desire to hear the truth. Then, he rebuked them. "In the United States Justice system, the defendant is innocent until guilt has been proven."

    That's my point. The defendant does not have to prove his or her argument. The DA or ADA must prove their argument that you actually committed a crime by murdering someone to twist that as affirmative defense does, violates the basic understanding of innocent until proven guilty. As for your question of insanity, the insanity defense is a different animal. In it, you are not arguing you did not commit a crime. You're arguing you did not know what you were doing when you committed the crime because of a mental disorder. As such, you need to provide proof you had the mental disorder. Conversely, taking a life, in and of itself, is not illegal. Otherwise, there would be no death penalty. It is only illegal when done in a way that violates laws, and it is the DA or the ADA that must prove laws are violated.
    --- Post automerged ---
    You're twisting words and arguing strawmen again. First, I did not call the person a criminal. I said the person is the aggressor. There is a major difference between the two. A criminal is someone who has stood before a court of law and has been convicted for a crime. An aggressor is someone who is attacking verbally or physically. In this case, a verbal aggression often precedes the physical aggression.

    If you are unaware of that difference, then yes, you definitely need a new law book. Now, stand-your-ground states, it is the DA's responsibility to prove the aggression was on the part of the defendant, rather than the person whom he claims is the attacker. Furthermore, you're still confused. It is not illegal to kill someone. As I said to Darth Revan, if it was, then there would be no death penalty. It is only illegal to kill someone outside of the circumstances provided by the law. Thus, a defendant taking a life has not admitted a crime. He or she admitting they operated within the law.
     
  9. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    Um, yes, they do. I suggest you read up on the burden of proof in affirmative defneses, because you clearly need to.

    When they're presenting evidence of self-defense, the onus is on the defendant to provide sufficient evidence to the satisfaction of the jury, not the judge. Why? Because it's an affirmative defense, which means part of it is admitting you did it.

    That's why the jury instructions would include 3 options on the charge:
    1. Guilty.
    2. Acquittal by reason of self-defense.
    3. Not guilty.

    Actually, they're the same, because they're both affirmative defenses. You admit you committed the act, but you provide evidence to suggest that you should not be found criminally culpable.

    Wrong again! Homicide is illegal. There are no situations where homicide is legal, except for in war, when you are the agent of a power, and you are killing agents of the enemy power. That's the only one. Period. The circumstances attached to that result in the different classes and variation on the charge, to include:
    1. Murder
    1a. of the First Degree -- I killed you and I thought about it ahead of time.
    1b. of the Second Degree -- I killed you and I didn't think about it ahead of time.
    2. Manslaughter
    2a. Voluntary -- Something I did made you die, and I did it intentionally, but you dying wasn't intentional.
    2b. Involuntary -- Something I did made you die, but it was an accident.
    3. Criminally Negligent Homicide -- I did something really careless, and you died.

    There are five acceptable defenses to the charge:
    1. Defense of Fact -- I didn't do it.
    2. Affirmative Defenses
    2a. Self-Defense -- I did it, but I was defending myself.
    2b. Insanity -- I did it, but I was out of my mind.
    2c1. Justifiability -- I did it, but I am allowed to do it in these circumstances (mainly cops).
    2c2. Privilege -- I did it, but I was in a situation where it is okay (mainly war).

    No. It is never outright permissible to kill someone outside of war. You're only found to be not criminally liable for the death if you are found to have acted in a way that is specifically provisioned for by law; self-defense, insanity, etc.

    Note that you're still civilly liable, regardless of what the criminal outcome is.

    You can't just kill people.

    The death penalty is an act of state violence, and has frankly nothing to do with this framework.
     
    Last edited: Feb 25, 2018
  10. Invictus

    Invictus Totally Sirius

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    Wrong. It's always illegal to kill someone, it's just a blameless crime because the person who did the killing was found to be justified in their decision. You're not proving whether the illegal fact happened or not, you're proving regarding intent (self-defense).

    Black's Law Dictionary:
    It negates criminal liability, not the crime itself.

    In general, Criminal Law asks and answers three questions:
    1. Did an individual commit a crime?
    2. Which crime did an individual commit?
    3. Does the individual have a defense?
    Notice how 3 doesn't negate 2. Having a defense makes you not punishable for doing it because you did the morally right thing, not the legal one. You still committed a crime.

    Cornell's Legal Encyclopedia:
    It's inside the State monopoly on violence, the thing that allows the police to exist and act. And as Revan said.... You're also trying to conflate two completely different types of law just because the end action is similar. If a police officer kills someone when they shouldn't have, but still acting officaly an agent of the State it doesn't make the State actually guilty of murder and means everyone on it is getting arrested for murder.
     
  11. Chengar Qordath

    Chengar Qordath The Final Pony Prestige

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    I'm a bit lost trying to follow this conversation, since it seems like a couple different things are getting mixed up together.

    Stand Your Ground and Duty to Retreat laws have no direct relation to how the burden of proof falls. They dictate the facts a defendant needs to demonstrate to support a self-defense claim, not the degree to which they need to prove it. For a short and oversimplified summary:

    Stand Your Ground: Lethal force self defense can only be used when threatened with lethal force.

    Duty to Retreat: Lethal force self defense can only be used when threatened with lethal force, and there is no way to safely withdraw from the situation.

    Granted, the issue does get a bit fuzzy since most self-defense laws establishing whether a state is Stand Your Ground or Duty To Retreat also say what level of proof they require. Frex, Florida's Stand Your Ground law also establishes that the standard of proof the defendant needs to meet (Preponderance of the evidence).

    Generally speaking, most affirmative defenses ask for either Preponderance of the Evidence, or Clear and Convincing Evidence. Those are both significantly lower standards than the "Beyond Reasonable Doubt" standard prosecutors need to meet.

    And, to touch back on my last post, while a good prosecutor always needs to establish the facts of the case it's a lot easier to establish facts that aren't disputed. Since affirmative defenses have to be entered at the pleading phase of a trial, the defense attorney concedes from day one that yes, his client did shoot that guy. Not to mention that in a self-defense case it's hard to avoid putting the defendant on the stand to testify about his actions.

    Also, one pedantic correction to make:
    You still might be civilly liable. You also might not be. Though civil liability is much easier to prove than criminal liability since it usually only requires Preponderance of the Evidence.
     
  12. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    One pedantic correction in turn, then. This ^^ is not strictly true.

    You don't have to demonstrate that you were threatened with lethal force, you have to demonstrate that you believed you were being threatened with lethal force, regardless of whether that is in fact the true state of affairs. They rely on the same rational person standard as police officers assert when they've shot someone on the job.

    The reason it's so pernicious is that a) the defendant can just assert it as a matter of fact that they believed this, and unless the prosecutor can definitively prove it's bullshit, how are you supposed to assail it? and b) it's impossible for a jury to get in the defendant's head, so either they take it on its face, or they decide they don't believe you, BUT when juries do that, more often than not, it's not because of qualities of legal argument or evidence, it's because of race, appearance, beauty, height, etc. (If you're a tall white man with a good haircut, a nice suit, no tattoos, etc., you're pretty much home free.)
     
  13. Joe's Nemesis

    Joe's Nemesis High Score: 2,058 Prestige

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    Seeing as I wasn't speaking of affirmative defense cases, but the general idea of what it means to be a defendant, I'd say you should read up on my post first. As for affirmative defense (EDIT - LMAO, I had "affirmative actions" here. That'd really skew the conversation), I will extend it to why affirmative defense is wrong as a legal doctrine, because it violates the basic understanding of proving guilt, rather than proving innocence.
    That is not true in many of the states primarily because of self-defense issues such as the Castle Doctrine. Uninvited intrusion into a home immediately necessitates threat to life or limb and as such, the owner is free to shoot and take the life of the intruder. In several other states, that extends to the car as well. There's no "affirmative defense" needed in those cases.

    Funny how quickly you want to scream wrong again when you don't even get the definition right. Let's go to a basic law dictionary on law.com. I'll highlight the important points with bold.

    Wait, you kill someone, and you're not criminally liable for it, but it's still not permissible? The mental gymnastics on that one is insanely difficult. I think even the East German judge would score a 10.
    To quote you . . . wrong again! Alabama, Colorado, Florida, Kansas, Kentucky, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, and Washington are some of the states that provide immunity from criminal or civil liability for self defense. In a strange twist, in Delaware, you can shoot and kill someone in defense of your bicycle and have immunity from any prosecution or civil liability, but not in self defense.

    Interesting thing, that. Seems to me the above definition sides with me. It specifically lists the death penalty as homicide, and then lumps it directly in with self-defense. So, yes, I think it has everything to do with it. It shows that not all taking of human life is illegal. You are not immediately "guilty" for killing someone. In fact, in the states listed above and others, doing so in your home or in many cases, your car brings about immunity unless the prosecutor can prove the person was in your home with your permission or can prove that the person was not threatening you in your car.

    Doesn't really sound like affirmative defense, does it?
    --- Post automerged ---
    Um... what were we arguing this entire time? Seems to me that's exactly what I've been saying. Asserting self-defense is not affirmative defense. The prosecutor must prove it was not. That is my entire argument here. And yes, I am arguing purely in stand-your-ground situations and furthermore, that Duty-to-Retreat invokes affirmative defense, which I believe is bad law as it demands the defendant to prove innocence, which is against the constitution.

    That's pretty damn easy to fix. Immunity for self defense and remove any type of affirmative defense. Thus, unless the DA can gather enough evidence to convince a judge it was not self-defense, it doesn't go to trial. Back to that founding-father thing where it is better to let the guilty walk than the innocent go to jail.
     
  14. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    You've been talking about self-defense. Self-defense is always an affirmative defense.

    You are admitting a crime and presenting mitigating evidence as to why you should not be found guilty. The onus is on you. As it should be. You're the one making a contention. Why should it be accepted at face value?

    The Castle Doctrine is an affirmative defense. It's just really easy to prove, because it's a defense of justifiability.

    Funny how 'basic law' is really 'basic' isn't it? For example, it incorrectly conflates people getting killed with people dying, and there's a legal distinction. If you took action that directly leads to the death of other people, it's homicide. If you get into a car accident because, say, the road is icy, and people die, but you acted as a Reasonable Person would have acted, then that isn't legally considered homicide at all. Homicide is a crime.

    You are responsible for committing an act that is not permitted, but found to be acquitted on the basis of a mitigating circumstance that negates the necessity for punishment. You're still responsible for the death, just not liable for it. There aren't gymnastics involved, it's really quite simple.

    Fine, then. Generally, you're still liable in civil proceedings. If 11 states let you off, then 41 jurisdictions don't (39 states, DC, and the federal arena).

    It's wrong. Homicide is committed by a person. Executions are carried out by the State, which is not a person. Unless this logic of yours holds that the executioner himself should be considered a private party and not the embodiment of the State, then that's meaningless.

    Yes. And I'm saying it's a problem.

    Self-defense is an affirmative defense.

    Affirmative defenses are entirely within the Constitution because they require you to admit what you've done and then provide the necessary evidence to prove you were justified. The burden of proof is on you. It's also a lot lower than the prosecution's burden, so if you're not lying, it shouldn't be that hard.

    SYG, on the other hand, is abused and lets murderers go free. It's entirely unnecessary, when self-defense is available to the defendant.

    Oh because that wouldn't instantly be abused either. Also, way to hang the insane people out to dry. That's just about the stupidest fucking idea I've ever heard.

    That already happens in pre-trial, when the judge rules that you have enough to go to trial in the first place. Trials are for convincing the jury, not the judge.
     
  15. Chengar Qordath

    Chengar Qordath The Final Pony Prestige

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    I did say it was short and oversimplified.

    Ultimately, the problem boils down to the fact that the jury has to judge another person's state of mind, which as you pointed out is very difficult to do. Just changing the legal standard from Stand Your Ground to Duty to Retreat wouldn't remove that problem. In the case of people just outright murdering and trying to claim self defense, they'd just modify their story a bit to meet the new standard.

    As the Trayvon Martin case came up earlier, I'll point out that Zimmerman's account of events would've still been fully in line with a self-defense claim even under a Duty to Retreat standard (Since his story had Martin physically restraining him, making retreat impossible). The problem with that case was less the law, and more that while nothing firmly disproved his story a lot of the surrounding circumstances and details raised a lot of questions about his account.
     
  16. Invictus

    Invictus Totally Sirius

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    Wouldn't he have to prove under Duty to Retreat that he had actually been physically restrained including body examination (corpus delicti), which he didn't actually have to do under stand tour ground?
     
  17. Chengar Qordath

    Chengar Qordath The Final Pony Prestige

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    Considering both sides in the trial already had a full record of Zimmerman's injuries and had expert witnesses carefully picking over whether they poked holes in his story or confirmed it, I expect there just would have put a bit more emphasis on "In my expert opinion, this bruise pattern totally proves he was pinned down."
     
    Last edited: Feb 26, 2018
  18. Joe's Nemesis

    Joe's Nemesis High Score: 2,058 Prestige

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    @Darth_Revan

    So, here's my mea culpa cry, and a further definition of what I am arguing.

    First, I was wrong. Let me admit that up front and clearly. DR was dead on accurate in his assessment of affirmative defense. So, where did I get so far off? What made me realize I was wrong was passage similar to the following from here.

    As it turns out, I was arguing the prosecutor has (or should have) the burden still, and thus it isn't rightly affirmative defense. That is wrong. It is still affirmative defense.

    So, how to further define my argument . . . when the idea of self-defense is raised by by defense backed with any type of evidence, then I fully believe it must become the prosecutor's responsibility to again prove beyond reasonable doubt that the evidence presented and thus, self-defense, was not the impetus for the action.
     
  19. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    @Joe's Nemesis. Don't do this to me. I feel like the dog who finally caught the UPS man. Do I make friends? Do I chew on his pant leg?

    Look, I get where you're coming from. This is two fundamental tenets of law coming head to head. On the one hand, innocent until proven guilty. I'm innocent, says the defendant claiming self-defense, why isn't the burden on you? On the other hand, the idea that he who makes the claim must prove the claim.
     
  20. Joe's Nemesis

    Joe's Nemesis High Score: 2,058 Prestige

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    Damn you! When I first read this, I had just set a video in class for my students to watch, and warned them not to be on their computers. Since, I, on the other hand, have seen the video numerous times including once today already, I thought I'd just check in on a couple of things.

    I literally had to stifle myself from busting out loud laughing.



    That's the gist of it right there. Very well said.
     
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