Self Defense has been an available affirmative defense to criminal cases since the dawn of society. Florida also has long acknowledged the fundamental right to use force in defense of self or others. The essential elements of self-defense have stayed about the same. A person may use deadly force when it is reasonably necessary to prevent imminent death or great bodily harm to the person or to another person. The procedure and burden of proof required to make a self-defense argument has changed.
Prior to 2005, a self-defense claim was made at only at a jury trial and it can still be raised at trial. At a trial, the person asserting self-defense is required to establish a prima facie case of the elements of the self-defense claim. The burden then rests on the State to establish that the claim is not justified beyond a reasonable doubt.
Florida’s Stand Your Ground law has strengthened the right to self-defense and provided a way to avoid a trial. The law eliminated the duty to retreat when attacked outside the home before using lawful deadly force, it created a presumption that a person had a reasonable fear if the person was attacked in the home or vehicle, and it provided immunity from arrest, detention, charging or prosecuting. In 2017, the burden applicable to the State in a claim for immunity from criminal prosecution were also added.
In a Stand Your Ground or Self-Defense Immunity claim, the burden is first upon the Defendant to present some evidence of entitlement to self-defense immunity. Then, the party seeking to overcome the immunity, in criminal cases, the State of Florida, must overcome the immunity by clear and convincing evidence. Cases still pending that were alleged to have been committed prior to the 2017 amendment may or may not be able to use this burden of proof depending on what the Florida Supreme Court decides in Love v. State SC18-747 that was still pending at the time this was written.
Clear and convincing evidence is not as high a burden as beyond a reasonable doubt. Losing a self-defense immunity or stand your ground hearing does not mean a person is convicted but that they should file for a writ of prohibition. Winning an immunity hearing means that the Defendant is immune from prosecution. Even if an immunity hearing is lost, self-defense can still be argued to the jury at the trial.
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