Klarinet Archive - Posting 000140.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] "Affirmative Defence"
Date: Sat, 07 Feb 2009 12:37:46 -0500

Actually it's a little more complicated than that here in the U.S.
because the rule is different in different states. What I recited in
my previous post is the "traditional" common-law rule we inherited
from the English courts (remember that our legal system is an offshoot
of the English system). Most U.S. jurisdictions today have adopted a
new rule, which is along the lines of what you describe the current
rule in the UK as, although there are still a number of states that
follow the traditional English rule.

49 of the 50 states have "common law" legal systems derived from
English law (Louisiana is the only exception). For instance, in my
state we even have a statute memorializing this fact:

"The rule of decision in this state consists of those portions of the
common law of England that are not inconsistent with the constitution
or the laws of this state, the constitution of this state, and the
laws of this state."
Texas Civil Practice and Remedies Code =A7 5.001.

On Fri, Feb 6, 2009 at 3:29 PM, Matthew Lloyd
<matthew@-----.uk> wrote:
> What a strange way of behaving.
>
> Over here, we do this rather differently.
>
> The Crown is required to prove beyond reasonable doubt that the violence =
was
> unlawful. As violence in the furtherance of self defence is (normally)
> lawful, then the Crown is required to prove that the violence was NOT sel=
f
> defence. And it must prove this to the criminal standard - namely beyond
> reasonable doubt.
>
> All the defendant has to do is to raise the issue.
>
> Seems a lot fairer to me.

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