Writing Assignment 1
Crime Scene/Law of Evidence
Haley Wolf
3/10/15

Introduction:
There are several types of affirmative defenses that can be used by the defendant. One of the defenses that can be used is that of self-defense. Self-defense is a justification defense, which means that the defendant does admit they were responsible for their acts but they claim what they did was right, under the circumstances. In the cases where this defense is used even if the government proves all of the elements of the crime beyond a reasonable doubt, the defendant still gets to walk because they are not blameworthy. As per the circumstances being studied, the shooting of the husband by the wife, the defense will be trying to use self-defense as the defense in the reasoning of the plea of not guilty. There are four elements that self-defense is made up of: 1. It has to be an unprovoked attack, 2. Necessity, 3. Proportionality, and 4. Reasonable belief. In the case for both the defense and prosecution all of these elements will be looked into. Also I will look at and consider as to whether it could have been considered a preemptive strike or retaliation as neither of those can happen if self-defense is to be used as the justification.
Prosecution:
Since this case is happening in Kansas the prosecution will have the burden of proof no matter what. This comes from 51.050 Defense – Burden of Proof which states: “The defendant raises self-defense as a defense…….The state’s burden of proof does not shift to the defendant.” There are two ways that the prosecution could go at prosecuting the defendant. The first is going at the gut of the defendant and getting the crime declared to be murder in the first degree. For this to be declared the crime the prosecution will have to prove that the defendant intentionally killed her husband, the killing was done with premeditation and that the act occurred on the day it did. These claims that have to be proved come from PIK 54.110 Murder in the first degree. The prosecution can ask that the jury consider this before self-defense which came help them. If the self-defense is considered first it may make the woman look like the good guy and make it harder for the prosecution to make their case. The first claim they have to prove is that she intended to kill her husband. The one thing that helps the prosecution the most in this area is that she was sitting waiting with the gun in their shared house that she had changed the locks to. He couldn’t just walk in and avoid confrontation if he wanted to. He may not have even been going to harm her because he had had a cooling off period, which means that her not giving him a chance to come in safely seems to point right at intent to kill him. The second claim that has to be proved is that the killing was done with premeditation. To prove this the evidence that the prosecution can use is very similar to that of intent. She locked all the doors and sat waiting with a gun. If she didn’t intend or think about doing something with that gun then she wouldn’t have had it out. At the very least I think we she could say she thought about seriously harming him with the gun if not murdering him. If the prosecution feels that they cannot get the murder in the first degree conviction there is another way they could go about getting the defendant convicted.
It will be of a lessor crime but, defendant would still do some time. As the prosecution tries to prove beyond a reasonable doubt that the evidence shows self-defense was not necessary, they could try and get the instruction of voluntary manslaughter. Voluntary manslaughter is an intentional killing upon an unreasonable belief that self-defense is necessary. The use of this to fight the self-defense being used by the defendant came about in State v. Holmes and also in State v. Gonzalez. If this is done right by the prosecution it can cause the court to refuse a self-defense instruction if they do not support a finding that a reasonable person would have perceived the need for the use of force in self-defense. This would not be the ideal situation for the prosecution but, it would be better for them than the defense winning on the use of self-defense. Ideally they would be able to convince the jury of the murder in the first degree but, the prosecution needs to keep their options open. Before going onto the case for the defense I will briefly talk about the elements of self-defense discussed in the introduction and how the prosecution can fight them.
The first element has to be that the attack you are defending yourself of has to be unprovoked. I think by the defendant changing the locks on the doors and not letting her husband get inside his home, which is all he tried to do when she shot him, that one could claim that she was provoking him. Next the self-defense has to be of necessity. There is no proof that he was coming after her so the shooting of him was not proved to be necessary. Next is proportionality. This means the force used to defend can’t be any greater than what is being used against you. To fight this the prosecution could say that he was coming in a window of the house he lived in. She didn’t even wait to see if he was going to attack but, just shot him as soon as he came in the window. It is my belief that physical force and a gun are not the same thing. Maybe if he had been pinning her down and she was dyeing it would be proportional. Physical force you have a chance to get away from though, a gun you don’t. The prosecution believes that for her to shoot him he needed to show some sign of going after her. The past and words he said aren’t good enough. I left the scene of the argument which shows retreat, which means he cannot be blamed for words used earlier. The last element of self-defense is reasonable belief. A reasonable person has to believe that this is the only option. I don’t think she was reasonable. She was losing it. She locked all the doors to their home and sat waiting. This to me does not show reasonable. The last thing I want to talk about in reference to the prosecution was whether or not they can prove that there was retaliation or a pre-emptive strike involved. If either of those can be proved then it cannot be considered self-defense. A pre-emptive strike is a surprise attack that happens to prevent the enemy or other attacker from attacking you. Retaliation is the action of harming someone because they harmed you. This I believe is where the prosecution truly has a chance to prove it absolutely could not have been self-defense. Why? Because she though he was going to come home and harm her. She set up a way to attack him first. To do this she locked all the doors, forcing him to enter through a window if he was going to enter. He did enter through a window and she shot him. To me this is a textbook definition of a pre-emptive strike. One could also see retaliation in there but, I believe it is more the pre-emptive strike than a retaliation. Now I will go on to talk about this case from the defendant’s point of view.
Defense:
The defendant has elected to plead not guilty by alleged self-defense. In Kansas the burden of proof does not shift from the prosecution to the defense. The defense needs to allege that the jury was improperly instructed that the burden-of-proof shifted. It is important to remember that she may have shot but do they know for sure that the aim was to kill. Her intentions could have been to keep him from advancing on her. If her intent was not to kill than it wasn’t truly premeditation for murder. The aim was to keep a person who was enraged from attacking. The prosecution had the task to prove all of the elements of murder if that is what they wanted to get her convicted on. That in turn made them have to show that the elements of self-defense did not occur. For her to get off on self-defense she has to have not provoked him, believed the necessity, proportionally applied force, and had a reasonable belief in what she was doing. She believes that by holing up in their house she was protecting herself which was not provoking him. Before he left the husband had claimed he would come back and harm her so that to her also gave reason to her shooting him. She felt it was necessary to protect herself. The next element that has to occur is that she used a force with proportion to his. She believes she did. Her husband being a male is probably a lot larger than she is. She got the gun to make herself feel like she had a force strong to fight off his body. The last element that has to occur is the reasonable belief that the defense is all that can be done in this situation. She believed that if he got through that window he would come and attack her. It is not the defendant’s job though to prove this. For the most part in a case like this she has to just sit back for the ride. She has to hope that somehow they can discredit all evidence the prosecution gives for it being murder. She also has to hope that the jury will consider her self-defense instruction after the approach the prosecution chooses to go with.
Conclucion:
In conclusion there are argument for both sides. When I first looked at this case I thought prosecution all the way. I still think the prosecution would win in this situation but, I can also see that the defendant could put up a fight. I think in situations like this it is not about the law after a certain point. What I mean by this is the lawyers can get up there and fight using all the fancy lawyer terms they want to but, in the end it’s all up to the jury. The jury’s perception of the person and whether they think they were right or wrong and what has gone on in their lives is going to influence in them. It’s like in the Jodi Arias case. Most of us after seeing those gory details thought death penalty all the way, she doesn’t deserve to live. The jury was hung though. Some didn’t believe it. She went on trial again and still they didn’t believe it. It goes to show that how people think will determine the outcome of the crime. In this case just like in the Arias case I think it will come down to what the jury feel. If they feel like she was just protecting herself or if the feel empathy for the dead man as the result of the gun she was holding.