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'Stand Your Ground' law needs clarity

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Charles McGuigan, Chief Deputy Attorney General (left), Justin Bell, lobbyist, South Dakota Criminal Defense Lawyers (right)

The South Dakota legislature passed a Stand Your Ground law last year that replaced previous legal definitions of self-defense. In part, the law says if a person is justified in using force, he or she is immune from criminal prosecution.

Opponents at the time said the law would nullify self-defense case law developed over decades and lead to confusion in the courts.

A year later, witnesses say that is the situation. Criminal cases are lining up for clarification before the South Dakota Supreme Court.

Senate Bill 195 is designed to settle those questions before the high court does.

Under current state law, a person who assaults or kills another person can claim immunity from prosecution because he or she was acting in self-defense. Senate Bill 195 clarifies whose job it is to prove it and by what standard.

The prosecutor always has the burden of proving guilt in a criminal case, and the standard is to convince a jury beyond a reasonable doubt.

Senate Bill 195 says the prosecutor is also responsible for proving that self defense does not apply, and the standard of proof is by clear and convincing evidence.

Chief Deputy Attorney General Charlie McGuigan testified against the bill when the Senate Judiciary Committee heard it.

He said under this bill, the defendant just has to raise a claim of self defense and then let the prosecutor prove otherwise. The prosecutor’s challenge to the claim takes place in a separate hearing before the trial.

“So the prosecution is basically having to prove their case twice,” he said. “Once by clear and convincing evidence, and again by beyond a reasonable doubt.”

McGuigan said a judge in Brown County found that the prosecutor could meet a less stringent burden of proof, that of probable cause, and that ruling is headed to the state Supreme Court.

He said the appeals process should just continue in that case and in others where proving self defense has become an issue.

Justin Bell disagrees. The lobbyist for the state Criminal Defense Lawyers said these cases are headed to the Supreme Court because the legislature didn’t deal with the issue last year. He said Senate Bill 195 gives the legislature the opportunity to make its intentions clear.

“This is the time to do that,” Bell said. “Why would we have the Supreme Court have to make a decision about what the standard should or should not be when the legislature can just say, ‘Well, this is the standard.’”

The bill has passed through the full Senate and now heads to the House side.