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The Right to Arm for Self Defense

So, you have the right to bear arms and you have the right to defend yourself, but what if you arm yourself in anticipation of defending yourself?

In Virginia, the answer is that if you have armed yourself in reaction to a threat the inference of malice that the use of a firearm in a homicide carries is negated. The same rule probably carries for lesser offenses such as malicious wounding, but the cases which set the rule are homicide cases. Generally, this has been laid out in a series of decisions having to do with jury instructions. The best statement of this probably comes from Bevley v. Commonwealth, JUN46, VaSC No. 3097:

It is a fundamental doctrine that a person who has been threatened with death or serious bodily harm and has reasonable grounds to believe that such threats will be carried into execution, has the right to arm himself in order to combat such an emergency. Whether the threats were made, or the accused had reason to believe they would be carried into execution, were questions to be determined by the jury. However, when a jury is told that the law presumes that a person using a deadly weapon to kill another acts with malice and throws upon the accused the burden of disproving malice, then the accused is entitled as a matter of law to have the jury instructed that he has overcome the presumption, if they believe the evidence offered in his behalf.

Of course, this uses the old "presume" language, which we have scrapped nowadays in favor of telling juries that they can infer. Nevertheless, the principal in the decision is still sound.

This right to arm extends so far that in Jones v. Commonwealth, JAN48, Va. No. 3304 a man who was clearly threatened could go home, arm himself, and wait on his porch for the man who threatened him to come was entitled to the right to arm instruction.

There are some limitations to the requirement that the instruction be given. Reasoning that the right to arm instruction is based upon a need to counter the available inference that if someone purposefully arms himself the act of doing so indicates malicious intent, the Virginia Court of Appeals has stated the instruction is not appropriate when the defendant merely grabbed an available weapon to defend himself or his family.  Lynn v. Commonwealth, MAY98, VaApp No. 0109-97-3. I take this to mean that since the defendant didn't purposefully seek a weapon there is nothing to counteract from the purposeful seeking of the weapon and therefore, the only instruction needed is the self defense instruction - not the right to arm instruction.

So, what exactly is the instruction? Well, here's the one from Bevley:

The court further tells the jury that when a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing him serious bodily harm, then such person has a right to arm himself for his own necessary self-defense."

And here's the one that was rejected as unnecessary in Lynn:

When a person reasonably apprehends that another intends to attack him or a member of his family for the purpose of killing him or a member of his family or doing him or a member of his family serious bodily harm, then such person had a right to arm himself for his own necessary self-protection and the protection of his family, and in such case, no inference of malice can be drawn from the fact that he prepared for it.

The second covers all the bases, so I think it's the better of the two.

It's an interesting line of reasoning and carries all sorts of questions. Does the threat have to be individualized? Can a Blood carry a sidearm because he knows that the Latin Kings are trying to kill Bloods in the City? The cases refer to the right to arm. How does this right play out with felons or others who are forbidden by mere laws from possessing firearms? Can a felon carry a firearm if he knows that the Pagans are hunting him? Personally, I think there has to be an individualized threat which has some immediacy.

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Introducing the Rejected Plea Agreement Hearsay & Relevance

Professor Miller addresses the hearsay problem and makes a case for allowing the introduction of the plea agreement under an exception as indicative of the state of mind of the prosecutor.

“In light of this data, evidence of a favorable plea offer by a prosecutor has significant probative value for establishing the weakness of the prosecution's case. While other factors may play a role in a prosecutor offering a favorable plea bargain to a defendant, the above data reveal that nearly every prosecutor is influenced by the weakness of the prosecution's case in making a plea offer. And, “if we assume that prosecutors are motivated by a desire to avoid acquittals, they are likely to adjust their plea offers so as to create the largest differentials in cases where the government evidence is weakest.” Put another way, “the more likely it is that a defendant will be acquitted, the more attractive the plea offer that he will receive.”

The flaw in this is that it conflates weakness of the case with innocence. If the favorability of the plea agreement tracked with the prosecutor's belief in the probability of the defendant's innocence - the better the plea offer the stronger the prosecutor's belief that the defendant could be innocent – then a favorable plea offer would clearly be a statement contrary to the Commonwealth's assertion of guilt and should be an exception to the hearsay rule. If Brady and its progeny are stretched a little they could require the admission of a prosecutor's admission that a defendant might be innocent. However, weakness of a case rarely has to do with a prosecutor's belief that the defendant is innocent.

My experience, and I daresay that most prosecutors would back me up on this, is that weakness of a case almost never comes from the thought that the defendant might be innocent. Most of the cases in which there is a question on my office's part are flushed out before I get assigned to prosecute the felony. In my case the primary cause for concern that the case is weak is a worry that I will not be able to get witnesses to court. The clerk who was robbed while working the late shift no longer works at the eZee Stop. The Officer who took the confession no longer works in the police department. The co-defendant who identifies the defendant is serving time in another State which may not want to send him back to be a witness. There are also plenty of other reasons for concern over a case. Admissibility of evidence may be a concern, particularly when there is a shift in constitutional precedent such as after Arizona v. Gant. There may be a concern that witnesses (momma, mamaw) may refuse to testify or develop memory loss because they don't want “little Bobby” to go to jail. Every honest prosecutor will tell you he's lost track of the number of times he's gotten a file in his hands which leaves him no doubt as to whether the defendant is guilty but boatloads of doubt as to whether he can prove that guilt.

Why is all this important? Because, a statement that a prosecutor believes a defendant is quite possibly innocent is a statement countering the prosecution's assertion at trial that the defendant is guilty. However, a statement that the case is weak is a statement of the difficulty of putting the case together, not a comment on innocence. Therefore, the offered plea, as merely a comment on the difficulty of putting the case together, should not be admitted as an exception to the hearsay rule.

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Even assuming the evidence makes it past the hearsay exception, it must pass the basic test that all evidence must: is it relevant? As the plea offer is about the weakness of the prosecutor's case and not about the innocence of the defendant it is not. The difficulty which the prosecutor went through in getting his evidence together (or failing to get certain parts) is not a concern of the fact finder. The fact finder is to review the evidence in front of him/them and make a decision based upon that evidence. The fact that a prosecutor had difficulty putting the case together has no bearing on that decision. The fact that a prosecutor was unable to present some piece of evidence he would have liked to present is only relevant insomuch as it may leave a vital element of the crime unproven and that will play itself out in the trial without the introduction of the rejected plea agreement.

Continued in Wednesday 2 p.m. post.

Introducing a Rejected Plea Offer into Evidence Perceptual Evidence

Colin Miller, of EvidenceProf Blog fame, sent me a link to an article he's written espousing the virtues of allowing a rejected plea agreement to be introduced by the defendant as evidence tending to prove innocence. It's an interesting article, but I must disagree with its conclusion.

The introduction of a plea offer is something which might best be called perceptual evidence. It wouldn't prove or disprove a physical element of a charged crime. Instead, it is meant to change how the finder of fact perceives the evidence. This is not necessarily a bad thing. Perceptual evidence is used in court in almost every trial. Most often we see this when evidence is introduced to show a witness' bias or when the prior convictions of a witness are introduced to show a lack of moral reliability. A less common example is one that Professor Miller offers: the introduction of the fact that a defendant refused immunity offered by the prosecution. None of these are actually a piece of positive evidence proving or disproving a physical element of the charged crime.

Perceptual evidence is per force a tricky area. It is the introduction of bias into the trial. In fact, the examples above all play toward a bias which has been approved by our jurisprudence. We conclude that a person who has been given a benefit from the prosecution in exchange for his testimony is, to some extent, likely to fabricate testimony against the defendant. We conclude that someone who has been convicted of a felony or misdemeanor involving “moral turpitude” is more likely to lie during his testimony. Courts have concluded that the fact that a defendant turned down an offer of immunity is indicative of a belief that he is innocent. All of these are officially sanctioned biases which are introduced to influence the perception of other evidence which has been introduced.

On the other hand, there is plenty of perceptual evidence which is out of bounds. Of course, blatant plays toward prejudices involving race, ethnicity, nationality, religion, &cetera are off limits. However, there are also any number of evidential items which are off limits due to judicial precedent. Neither the prosecution nor the defense can introduce the results of a polygraph test. The prosecution cannot introduce the defendants 10 prior convictions for the same type of offense; under Virginia law the prosecutor could ask a defendant who has chosen to testify how many felonies and moral turpitude misdemeanors he has been convicted of, but no questions beyond the number are allowed.

So, how do we determine if a defendant should be allowed to introduce the perceptual evidence of a rejected plea offer to the finder of fact during a trial? Personally, I see three obstacles. The first is that the plea offer is hearsay. The second is whether the plea offer is relevant. The third is the probative/prejudicial test.

Continued in Tuesday 2 p.m. post.

Introducing the Rejected Plea Agreement into Evidence

Colin Miller, of EvidenceProf Blog fame, sent me a link to an article he's written espousing the virtues of allowing a rejected plea agreement to be introduced by the defendant as evidence tending to prove innocence.

I have penned a three part reply which shall post at 2 p.m. Monday, Tuesday, and Wednesday:

Monday - Introducing a Rejected Plea Offer into Evidence: Perceptual Evidence

Tuesday - Introducing the Rejected Plea Agreement: Hearsay & Relevance

Wednesday - Introducing the Rejected Plea Agreement: Probative/Prejudicial

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