An Interview with Massad Ayoob
Armed citizens sometimes read their state law and interpret its allowances in an over broad manner. A few months ago, I asked Massad Ayoob what elements from self-defense law he sees most frequently misunderstood or misinterpreted by students and by armed citizens who read his books and articles. As an instructor who travels extensively and teaches classes nationwide, few have the pulse of the nation’s armed citizens as accurately as Mas.
I guess I should not have been surprised when the topic Massad identified as an area of misunderstanding raised by his students was not simply stand your ground or castle doctrine, but rather a broader area of concern, and was instead, the burden of proof when one claims self-defense as justification for use of deadly force. What he described was an intricate volley between the defendant and the state, so we publish the following interview as an educational look into what is required to prove the elements of self defense when you are being charged with murder, manslaughter or assault.
We switch now to our familiar Q & A format to learn from Massad in his own words.
eJournal: Thank you for chatting with us, Massad! I expect most of our readers are familiar with the term “affirmative defense.” Our understanding of it, though, may be excessively simplistic. What’s involved here?
Ayoob: The big thing to understand with the affirmative defense is that it differs from the usual criminal defense of, “My client did not do this.” The affirmative defense says, “My client shot him, but my client was correct in doing so.”
Essentially, murder is the intentional killing of another human being—speaking of murder in general. If we shot in self defense, it certainly was an intentional act. If it turns out that he died, the elements of a murder charge have actually been met.
We call it a “defense” because we are not claiming it didn’t happen; we are saying that we were correct in doing what we did. Essentially, what we are saying is that we stipulate to the act; we maintain that we were correct in taking that action.
You get a two-edged sword. The good news is that the affirmative defense is what is called a perfect defense. [chuckles] Many attorneys could spend the day arguing what is or is not a perfect defense! Basically, the litmus test is, if the judge’s instructions to the jury can be construed as saying, “If you believe the defendant’s story, you must find him not guilty,” that is a perfect defense.
The bad news is, historically, the affirmative defense has shifted the burden of proof. Normally, the burden of proof is on the accuser–the state or the plaintiff–to show that a wrong was done by the defendant. Here, the defendant has said, “Yeah, I did the thing you say was wrong. I’m saying I was right to do it, and therefore should be held harmless.”
I always invoke the balance test from two great legal scholars, in my opinion, one being, Henry Campbell Black. He was the author of Black’s Law Dictionary which is still the standard today. If you look up “affirmative defense” in Black’s Law Dictionary it will clearly state, the affirmative defense shifts the burden of proof to the defendant.
Now, the other citation is from a man I consider a great legal scholar of our time on this topic, Andrew Branca, author of Law of Self-Defense. When Andrew meticulously went through the laws and the rules of the courts in all 50 states, he found what I did way back in the ‘70s, when I did that for my first book, In The Gravest Extreme that came out in 1980.
What the law says is that once self defense is on the table and the jury is allowed to hear the argument or the judge accepts that it is a possibility, at that point in a criminal case the burden of proof shifts back to the state to prove that it was not self defense. The one exception for many, many years was the state of Ohio, which said in the black letter law in a self-defense homicide or a self-defense harmful action the burden would be upon the defendant to show that it was self defense.
eJournal: So, if you shoot someone to avoid being killed during a home invasion, for example, and you are charged with murder, what do you have to prove, what does the state have to prove, and why would that shift?
Ayoob: A quick commentary on the standards of proof may help. A guilty verdict demands that you be found guilty beyond a reasonable doubt. When self defense is on the table, the standard of proof is to a preponderance of evidence to show that it was self defense. That remains the standard today in some of the states that have the so-called stand your ground option. That is a misnomer: really, it is simply a pre-trial hearing in which the judge determines whether or not there is enough evidence to show that you are likely to be guilty. If in that hearing, you can show to a preponderance of evidence–more likely than not–that it was self defense, in those states the judge has the power to permanently dismiss the case, dismiss it with prejudice, and end it right there.
Let’s go back: so, if we have self defense on the table, where is the burden of proof? For self defense to be on the table at all–for the judge to allow your attorney to say “self” and “defense” in the same sentence–prior to trial, you will have to show some corroboration that you are not just saying, “Take my word for it! It was self defense.” The required corroboration is called “burden of production.” When I hear “burden of production,” to me the operative term is “burden.” In and of itself, right there, it is a burden of proof element from the get-go. Once self defense is on the table, the judge is going to tell the jury that the prosecution has to prove beyond a reasonable doubt that it was not self defense.
Then, as the instructions go to the jury, and as the door closes on that deliberation room theoretically, at law, the burden is back on the opposing side, on the prosecution.
eJournal: Wouldn’t we want the state to have to convince a jury that we weren’t in danger of being killed when we decided to use deadly force ourselves?
Ayoob: The problem with that is in human nature and jury psychology. Every one of us has met people who confuse “homicide” with “murder:” they think they are synonymous. It has been eight years now since the George Zimmerman/Trayvon Martin shooting and we still hear people screaming, “Murder! Murder! Murder!” even though Zimmerman was acquitted based on the evidence. You and I know that acquittal was absolutely correct based on the facts and the evidence that were scientifically incontrovertible. So, given the fact that a whole lot of folks think that, “killing the guy” and “murdering the guy,” are the same thing, and the trial starts with the opening statement of the defense saying, “Yes, my client killed him,” we also have the burden of jury psychology/jury dynamic to prove that this was so necessary that, had the jurors been there, they would have shot the guy themselves. That is why any trial strategist will tell you in real world jury psychology, the burden of proof really is on the defense, the wording of the black letter law notwithstanding.
eJournal: In order to successfully present an affirmative defense and meet our burden of proof, does the defendant need to get on the stand and give testimony?
Ayoob: It is almost always a good idea, but there are some cases where we have had to do it without the witness on the stand. We had one where the victim was a lifelong victim of battered woman syndrome and she had adapted to life by saying whatever an alpha male told her to say. We knew that a very aggressive alpha male was going to cross-examine her, and we knew where that would go. We had to use just the fact evidence we had, which was fortunately enough and we won an acquittal with two hours of deliberation. It can be an uphill fight. We had one where the client’s cardiologist told his attorney, “Look, his heart will not withstand the stress of this trial. You might win the trial, but I would lose a patient.” We were able to get that resolved without putting him on the stand and without him doing any time. He even wound up keeping his concealed carry permit.
The George Zimmerman case is a classic example. The reason that worked is because he had answered questions by detectives at great length. He did that without counsel present, which we normally would not recommend. He handled himself very well, very honestly and his statements in evidence were, essentially, what he would have said on the witness stand without being subject to tricky cross-examination by some very clever and desperately motivated prosecutors. As you saw there, his defense team did a brilliant job and got him acquitted.
By and large, an affirmative defense case does not come down to who shot him! We already know who shot; we have already stipulated that you shot him. It comes down to WHY did you shoot him. In the end, no one but you can fully explain those reasons.
eJournal: I have read that deciding to present an affirmative defense, equates to going on the offensive. Does your experience show that characterization to be accurate?
Ayoob: I would say that is very true. You can’t just sit back and say, “He didn’t do it.” With real-world psychology and real-world trial tactics, the very fact that you say, “I did it,” means you have got to show a jury that what you did was necessary, and the ideal is that if they had been there, they would have picked up a gun themselves and shot him. I aim high: I try to convince the jury that if Albert Schweitzer were there, he would’ve given the guy a lethal injection.
eJournal: When we were thinking about doing this interview, you commented that you only take cases where the facts and evidence indicate that the defendant should put on an affirmative defense. This is your specialization and expertise. When you consult on cases, if you recommend an affirmative defense, do attorneys ever tell you that there is no way they would ever tell a jury that their client actually did what they are accused of doing? Do they lack the courage to present such an aggressive argument?
Ayoob: No, it is not that they lack the guts to put on an affirmative defense, it is they don’t realize the shooting was self defense. I have lost count of the times I have run into lawyers who say, “How can I say that it is self defense? He shot him in the back!” Then, I have to explain to them how gunfight dynamics work.
The attorney might say, “How can I convince people it is self defense when my client shot him nine times?” I have to explain that to them, because they do not teach this in law school. When Marty or I teach deadly force, when we have an attorney in the class, we ask, “In your three years in law school, how much time did they spend teaching you deadly force law?” As a general rule, the answers range between, “I don’t remember any at all,” and “two maybe three hours” unless we have the rare case where one of them had a moot court assignment that involved a self-defense shooting and they had to research it.
Essentially, firearms instructors and often the defendants themselves–provided they are one of my graduates or one of Marty’s Firearms Academy of Seattle graduates or a Network member who simply has listened to all of the member education videos the Network provides–are probably going to have a better handle on deadly force law than somebody who graduated from law school last week.
eJournal: Seems to me we may have to start by educating the defense attorney or be sure our attorney is amenable to having a conversation and taking coaching from you or an expert like you.
Ayoob: Oh, absolutely. I have spent a lot of time working with defense lawyers and have been a member of the National Association of Criminal Defense Lawyers for many years. I have been brought in many times to speak for state bars’ continuing legal education on this topic.
One thing I have found is that the defense bar, by and large, tends to lean toward the left side of the political spectrum. They see freeing people from the system as their role. The great majority of the criminal defense lawyers’ clients are guilty of at least some lesser or included offense. They do not think about protection from their criminal clientele, the very thing that we teach our people about. A whole lot of them are anti-gun, which I compare to an attorney who has been assigned to defend a child molester or a child pornographer. They are disgusted at the very thought of having to go through the evidence and look at it. They’re a little like that if we are talking about a gun case and they have to be educated on how guns work and how human dynamics work in gun fights. For them, it is like being forced to look at pornography. They find the very idea repugnant. A whole lot of them are anti-gun, and we are stuck with that. When I work with that type of attorney, I really have to educate them.
I can tell attorneys how these cases go because we have seen self-defense cases more often. Likewise, an expert witness can say, “Here are a whole lot of attorneys who have done similar cases, who’ve been successful in court. You might want to talk to them about sharing strategies,” or as the expert, I can simply give them those strategies.
There may be a pre-trial hearing, in which case the lawyer might want an expert to come in and testify to a judge and say, “Look, here is what we would offer. We are not going to say words like ‘reasonable,’ or ‘innocent,’ or anything like that, but here are the parameters that we think that the jury really needs to know before they assess, ‘All right, did this guy do the right thing in these circumstances or not?’” That is a situation in which an expert actually can have a part–we don’t always, but we certainly can.
eJournal: Earlier, we discussed the court’s discretion in allowing or prohibiting discussion of self defense during a trial. If the attorney says, “My client did it and here’s why he was right to do it,” why wouldn’t a judge let the defense make their best attempt to prove that assertion?
Ayoob: Well, if there is no evidence whatever that it was self defense, the judge won’t allow a self-defense argument to come in. If Richard Speck had said all eight of the nurses that I killed attacked me at once, that would probably not have been on the table as self defense.
eJournal: If we harbored any illusions or thought, “All I have to do is claim self defense,” we should realize right now that sometimes a judge may say, “Oh, hell no, you are not going to talk about that.”
Ayoob: That is pretty much how it goes.
eJournal: You’ve used two terms frequently. One is the preponderance of the evidence and the other is beyond a reasonable doubt. Let’s make sure we understand the terms, and if you have an example that could prove helpful, too.
Ayoob: Strictly speaking, in criminal court, beyond a reasonable doubt is the prosecution’s standard. Once self defense is on the table, they have to show beyond a reasonable doubt that it was not self defense. Once we are in trial to establish that it was self defense, we need to show at least to the level of a preponderance of the evidence that it was self defense. That is the civil court standard, it is the Florida standard for basically killing the trial before hand, and generally is the affirmative defense standard.
eJournal: Confronted by bereaved relatives of the person you shot, how does a jury decide what is beyond a reasonable doubt?
Ayoob: This is, I suppose, an imperfect comparison but may serve for our fellow IDPA shooters. One of the rules is if you are wondering whether there’s a double–two bullet holes at this defect on the target or only one–or you’re wondering, did this bullet break the scoring line or not? the rule is if two range officers are arguing about it, that right there is reasonable doubt and automatically the benefit of the doubt goes to the shooter.
Now, in every jury deliberation there is going to be somebody arguing toward innocence and there are going to be others arguing toward guilt. Basically, if you cannot be sure, the very fact that you are not sure means it is not true beyond a reasonable doubt.
The bottom line is if you are not really sure, you must not find him guilty of murder. If you are really sure that he was either incredibly reckless and should have known that somebody would die from what he did, and they did die, that, right there, is pretty much manslaughter. If you find yourself thinking, “Hell, I would have done what he did,” that is a not guilty verdict.
eJournal: I’ve sometimes heard expert witnesses comment about cases in which the best they can hope for is a jury that can’t agree on innocence or guilt–in the vernacular, a hung jury. Sometimes those cases are not retried, but sometimes they are. I am sure each person involved would have a different opinion as to whether that is a victory or a defeat. What do you think?
Ayoob: Well, as far as the jury in the courtroom audience is concerned it is a draw. It is a win if the other side realizes it didn’t work this time, so it probably won’t work a second time, and they think, “The heck with it! We drop the charges.” Then it is a win, with effectually–for the most part–the same outcome as an acquittal, although not necessarily in the public eye, but insofar as further litigation.
eJournal: The shifting burden of proof is a surprisingly complicated topic, so in closing I am interested in how you would synopsize what we’ve discussed and what you’d like us to take away from this talk with you.
Ayoob: The reason the subject of burdens of proof is complicated is because the burden shifts back and forth. The general rule of thumb is that the burden of proof is on the accusing party. When, however, we are saying, “Yes, we did it, but we were right to do it,” in the broad overview, the burden shifts back to us and the judge says, “Well, show us the preponderance of evidence that you are telling the truth.”
In a criminal case, once the judge accepts that there is some corroborating evidence–whether it is testimony or fact evidence–and self-defense is allowed in front of the jury, the burden of proof shifts back to the accusing side to prove beyond a reasonable doubt that it was not self defense.
The bottom line? Act as if always the burden of proof is on you because of the jury psychology element and something that we have not discussed yet, what I call the bigger jury—the public that you and your family have to go back to and live with after the trial. If you got acquitted and everybody in the world that knows you and your family think, “Well, the high-priced lawyer got you out of the evil that you did,” that is a very hollow victory, you need to be able to convince everybody, at least everybody who does not have an agenda, that you did the right thing.
eJournal: Thank you for teaching us about burden-of-proof issues, and for a very good reality check about what matters in the end.
Network Advisory Board member Massad Ayoob is author of Deadly Force: Understanding Your Right to Self Defense which is distributed in the member education package for all Network members. He has additionally authored several dozen books and hundreds of articles on firearms, self defense and related topics. Of these, Massad has authored multiple editions of Gun Digest’s Book of Concealed Carry and Gun Digest Book of Combat Handgunnery.
Since 1979, he has received judicial recognition as an expert witness for the courts in weapons and shooting cases, and was a fully sworn and empowered, part time police officer for over forty years at ranks from patrolman through captain. He recently became the president of Second Amendment Foundation. Ayoob founded the Lethal Force Institute in 1981 and served as its director until 2009, and now trains through Massad Ayoob Group. Learn more at https://massadayoobgroup.com or read his blog at https://backwoodshome.com/blogs/MassadAyoob/.
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