Trayvon Martin and Self Defense in Virginia

The outrage over the shooting death of a Florida teen continues to grow. As a parent and an American I join in that outrage. As an attorney I somberly recognize that it might be difficult to obtain a conviction with Florida's strange variation of the law of self-defense. An interesting question is, "could this happen here ?".

In Virginia you have to prove you did everything you could before using deadly force. Virginia lawyers learn in law school that, "The law of self -defense is the law of necessity." To assert this defense a Virginia homicide defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the court. Virginia recognizes two types of self-defense homicide theories. Justifiable homicide occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself. An excusable homicide exists where the "accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.

As a result in Virginia, the shooter in the Martin matter would face significant legal issues. First, he would likely have to demonstrate that he had no fault or retreated as far as possible. Second whatever defense he presented would need to be brought up as an affirmative defense in trial.

I cannot competently comment on the application of the Florida law to the facts at issue. I can only say that the limited facts that have been made available to the public indicate that the shooter would almost certainly be charged with some degree of homicide in Virginia. The shooter has a constitutional right to refrain from ever discussing this matter again. Trayvon cannot tell his version of what happened. Sadly our desire to have this matter brought to justice or even explained may never be satiated.

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