Milwaukee Man may face Charges for self defense shooting

[Frank Ettin]

...in Ohio's castle law. Used to be you got charged with homicide, because you killed somebody, and you had to defend yourself by proving it was justifiable. Now the burden of proof is upon the state to prove it was NOT justifiable.

Have you got some legal authority for that? According to this article that was not the case as of July of 2013:

Of the 50 states in the US, 49 of them require the State to disprove a defendant’s claim of self-defense, beyond a reasonable doubt. Ohio, on the other hand, requires that the defendant prove self-defense by a preponderance of the evidence....

Also, as I have commented previously even in those States in which it's the prosecution's burden to prove a use of force was not justified self defense, the defendant still has the burden to first produce evidence making a prima facie case of self defense. Only then would the prosecution have to prove a lack of justification.

The defendant claiming self defense will not get a self defense jury instruction unless he has made a prima facie case of self defense. And even if the defendant claiming self defense doesn't have the burden of proof (only the burden of producing evidence), the less convincing he is the easier it will be for the prosecution to overcome the claim of justification.

 

[Double Naught Spy]

And sometimes what you don't say can be used against you too. The Supreme Court has ruled that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one's silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).

Right, the Miranda Rights do not say that one's silence may be used against you, but that you do indeed have the right to remain silent, which was the question proffered.

 

[Frank Ettin]

And sometimes what you don't say can be used against you too. The Supreme Court has ruled that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one's silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).

Right, the Miranda Rights do not say that one's silence may be used against you, but that you do indeed have the right to remain silent, which was the question proffered.

No, actually the question was in the context of assessing a proposed legal strategy for dealing with self defense incident.

The mere fact that one may remain silent is not very helpful in the context of the question. A thorough answer required consideration of the possible consequences of remaining silent.

 

[Dreaming100Straight]

Thanks to the pointer to Salinas, Frank. I haven't read it but one writers analysis, which seems to be that the problem was created because the person of interest talked and talked, but when asked a potentially incriminating question was silent and looked guilty, but never invoked the 5th. If that analysis is correct, at least on the Federal level, you can remain silent but must make it clear that you are invoking the 5A right to remain silent.

I read before about what Ayoob and you and some others recommend regarding the importance of not clamming up completely (make the intitial call to the police, point out exculpatory witnesses and evidence, that you were being attacked, and then politely explain that you must remain silent until you speak with an attorney (and that you are invoking the 5A per Salinas).

 

[ATN082268]

I read before about what Ayoob and you and some others recommend regarding the importance of not clamming up completely (make the intitial call to the police, point out exculpatory witnesses and evidence, that you were being attacked, and then politely explain that you must remain silent until you speak with an attorney (and that you are invoking the 5A per Salinas).

That sounds reasonable (and advisable).