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October 29, 2017

A couple of notable "castle doctrine" tweaks for Ohio's approach to self-defense

We will review this week the theoretical justifications and doctrinal nuances of the "duty to retreat" before using deadly force in self defense, as well as the so-called "castle doctrine" exception to the duty to retreat.  These refinements on self defense can get intricate and complicated both at common law and under the modern MPC formula.  As the Thomas case highlights, Ohio generally relies on a common-law approach to self defense (and other defense), but the Ohio General Assembly in 2008 decided to enact these (important?) statutory nuances to the application of self defense in "castle" situations:

2901.09 No duty to retreat in residence or vehicle.

(A) As used in this section, "residence" and "vehicle" have the same meanings as in section 2901.05 of the Revised Code.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

2901.05 Burden of proof - reasonable doubt - self-defense....

(B) (1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2) (a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence....

(D) As used in this section.... "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest [and] "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

UPDATE: As I was gearing up for our discussion of Thomas, I realized I had not provided for you the statutory language the Ohio General Assembly passed in 1990 to address one of the issues raised in this case:

2901.06 Battered woman syndrome evidence.

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the "battered woman syndrome:"

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the "battered woman syndrome" and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person's use of the force in question.  The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

October 29, 2017 in Course materials and schedule | Permalink

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