People do not have to prove themselves innocent, contrary to what criminal defense lawyer Nicholas Sarwark claims

People do not have to prove themselves innocent, contrary to what criminal defense lawyer Nicholas Sarwark claims

Do people have to prove themselves innocent when they act in self-defense or in defense of other innocent people? No, they don’t, but you would get that false impression if you followed criminal defense lawyer Nicholas Sarwark on Twitter. Sarwark is full of misinformation.

Recently, a former marine was charged with second-degree murder by a progressive district attorney in Manhattan for the death of an aggressive, menacing homeless man he restrained on a subway train. The former marine alleges he acted in defense of other passengers on the train endangered by the aggressive homeless man. An elderly woman who was on the train at the time reports that the homeless man said “I would kill a motherfucker. I don’t care. I’ll take a bullet. I’ll go to jail.”

Sarwark claimed the man has to prove “beyond a reasonable doubt” that he acted in “self defense or defense of others.”

Nicholas Sarwark
Is there evidence of the person a man choked until he died initiating a physical attack on another person that created an imminent risk of serious bodily injury or death? That would need to be proven beyond a reasonable doubt for self defense or defense of others to apply.

This was an incorrect statement of law, as a commenter pointed out to Sarwark, “This is incorrect. The burden of proof is not on the defense. Such a phrasing is really disappointing.”

Even if it made sense to require people to prove themselves innocent, it would be very unreasonable to prove themselves innocent “beyond a reasonable doubt” as Sarwark as suggests. “Beyond a reasonable doubt” is very demanding standard, meaning a 98% or 99% chance of being the case. Few people who actually act in self-defense could meet such a demanding standard, so they would go to prison as a result, despite very likely being innocent.

Years ago, law professor Eugene Volokh provided a helpful discussion of this issue for the public, noting that the burden of proof rests on the prosecution to defeat a self-defense claim in pretty much every state but Ohio, where the accused had to prove himself innocent by a preponderance of the evidence (“preponderance of the evidence” means a greater than 50% probability of innocence — a far lower probability than beyond a reasonable doubt, which is a 98% or 99% probability). Even Ohio recognized it would be unreasonable to force people to prove their innocence by a 98% or 99% probability.

The Ohio legislature has since concluded that people should not have to prove themselves innocent when they allege self-defense or the defense of others. And so it has shifted the burden of proof to the prosecution.

Professor Volokh described the law as it existed in 2021, when virtually all states (including New York) already required the prosecution to disprove a claim of self-defense:

Self-defense is an affirmative defense, so the defendant has the burden of producing evidence: He must put on some evidence from which a jury can find self-defense. But then the burden of proof returns to the prosecution, which must disprove self-defense beyond a reasonable doubt.

It was not always thus. The English common law rule at the time of the Framing was that the defendant must prove self-defense by a preponderance of the evidence, and the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused would be constitutional. But even by then, “all but two of the States, Ohio and South Carolina, ha[d] abandoned the common-law rule,” and they have since changed their rule by statute. (The only exception I know of is the view of some Louisiana appellate courts in non-homicide cases (see State v. Satterfield (La. Ct. App. 2021)), which still require the defendant to prove self-defense by a preponderance of the evidence; Louisiana follows the unanimous beyond-a-reasonable-doubt rule as to self-defense in homicide cases.)

Of course this doesn’t dispose of what the rule ought to be. One way of thinking about that policy question is that the nearly unanimous rule takes the view, “Better that 10 guilty killers go free than one person who killed in proper self-defense go to prison for a long time (or be executed).” The Ohio rule, which is also the historical Framing-era rule is, “It’s slightly worse for one guilty killer to go free than for one person who killed in proper self-defense to go to prison for a long time (or be executed).” And of course one can consider variations of these rules as one shifts the burden of proof, or sets a quantum of proof at some other place, such as clear and convincing evidence. But the current law is pretty clear.

Sarwark and his allies are frequently wrong about the law, especially as it relates to self-defense.  In 2020, the national Libertarian Party, which Sarwark headed at the time, listed “Michael Brown” and his death as an example of “systemic” racism and “extrajudicial killings, and blatant violence toward black communities” by police. After a police officer killed Brown in self-defense, a misinformation campaign made the false claim that Brown was murdered after saying “Hands Up, Don’t Shoot.” That false claim triggered rioting, looting, and arson in cities such as Ferguson. But in 2015 the Obama Justice Department issued a report debunking that claim, noting on page 82 that “the shots fired” by the police officer “were in self-defense.” As The Washington Post reported in 2015, Ferguson police officer Darren Wilson “was justified in shooting Brown,” according to the Civil Rights Division of the Obama Justice Department. “It was reasonable for police Officer Darren Wilson to be afraid of Michael Brown in their encounter last summer, a Justice Department investigation concluded,” admitted the St. Louis Post-Dispatch. But five years later, Sarwark’s underlings were still promoting inflammatory misinformation about the Michael Brown case that had been debunked by the Justice Department.


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