News: “Ohio Senate Approves Modern Burden of Proof, But Not ‘Stand-Your-Ground’”

Yesterday the Ohio Senate voted on the bill intended to bring the state’s self-defense law into the modern era, according to Fox News and other sources. The good news: They sent the bill to the Governor’s desk. The bad news: They only sent half the bill, leaving the other half dead on the Senate floor.

Strictly speaking “half” is not an accurate representation, but it fits the two major portions of the bill most relevant to self-defense law: the allocation of the burden of proof on self-defense, and the issue of whether Ohio will impose a legal duty to retreat on people otherwise lawfully acting in self-defense.

On the issue of the allocation of the burden of proof, the bill retains the much needed change to Ohio law that places the burden of persuasion on self-defense on the prosecution, rather than on the defendant. The bill thus adopts the same standard as applies in all 40 other states: once the defendant has met his burden of production on self-defense, the burden is on the state to disprove self-defense beyond a reasonable doubt. 

This change is truly enormous and important. I use the graphic above in my classes to illustrate why. The top bar represents the prosecution having to disprove self-defense beyond a reasonable doubt. The bottom bar represents the defense having to prove self-defense by a preponderance of the evidence—the current law in Ohio. The area inside the red box represents precisely identical cases on the facts that are easy acquittals in 49 states and an easy conviction in Ohio—on the exact same facts. That’s simply wrong, and it’s good to see the Ohio legislature push this fix.

Sadly, the “stand-your-ground” provision that was in the version of the bill passed by the Ohio House has been dropped by the Ohio Senate, purportedly in the interests of advancing the bill quickly enough so that the legislature would still have time before the end of the year to override Governor Kasich’s promised veto. 

This failure leaves Ohio as one of the minority of 14 states that continue to impose a legal duty to retreat on people otherwise acting in lawful self-defense. In short, the “duty to retreat” standard means that even if a person is the totally innocent victim of a deadly force attack, even if that attack is happening right now, even if they used no more defensive force than necessary, and even if they acted reasonably in every way, the state of Ohio reserves the right to put that person in prison for the rest of their lives if police, prosecutors, judges, or jurors conclude that the person failed to take advantage of a safe avenue of retreat.

Of course, the people making this determination are doing so in the complete safety of their offices or chambers of deliberation room, not while being the innocent victim of an imminent deadly force attack. Ironically, almost all of the political resistance to “stand-your-ground” is founded on a fundamental misunderstanding of the law and its actual application. 


Attorney Andrew F. Branca
Law of Self Defense LLC

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