20 U. Tol. L. Rev. 105 (1988-1989)
Ohio's Unique Rule on Burden of Persuasion for Self-Defense: Unraveling the Legislative and Judicial Tangle

handle is hein.journals/utol20 and id is 115 raw text is: OHIO'S UNIQUE RULE ON BURDEN OF PERSUASION
FOR SELF-DEFENSE: UNRAVELING THE LEGISLATIVE
AND JUDICIAL TANGLE
John Quigley*
ITEM: Ohio is the only jurisdiction in the United States in
which a defendant asserting self-defense to a criminal charge
bears the burden of persuasion on that defense. In all other
jurisdictions, the prosecution must negate the defense.
ITEM: Ohio has this rule as a result of the misreading by the
Ohio Supreme Court of confusing legislation adopted by the
Ohio General Assembly in 1974 and 1978.
This article explains how the Ohio law came to this posture,
analyzes it from the standpoint of criminal law policy, and
proposes judicial and legislative reform.
I. THE COMMON LAW RULE ON PROOF OF SELF-DEFENSE IN
OmIo
T HE common law rule provided that the accused, in crim-
inal cases, bore the burden of persuasion on all defenses.'
That rule was based on the proposition that the causing of
death created a presumption that the actor caused death unlaw-
fully. Rebuttal of that presumption was the burden of the
defendant, whether the defendant claimed that the death was
caused in self-defense, under some other defense, or even acci-
dentally.
A. Adoption in Ohio of the Common Law Rule
Historically, most courts in the United States followed the
common law approach. The Ohio Supreme Court, in an 1831
* Professor of Law, Ohio State University. LL.B., 1966; M.A., 1966;
A.B., 1962, Harvard University.
1. 4 W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 201 (1857).
Regina v. Smith, 173 Eng. Rep. 441 (1837) (jury charge: accused must satisfy
the jury that killing was in self-defense).

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