4.1b. Who must prove what in a Self-Defense case
Under Maryland law, a defendant asserting Self-Defense must first show there is “some” evidence that all the previously stated factors exist and then the burden is on the state’s attorney to prove at least one of the factors is absent.¹ Note that the defendant ’s burden of proving these factors is not great, meaning you do not have to prove beyond a reasonable doubt that they exist, the defendant simply needs to put on “some” evidence of each of the factors and the burden shifts to the state to prove one of the factors doesn’t exist at all. This requirement that the defendant put on “some” evidence of each of the elements is applicable to every form of legal use of force found in Maryland.
Under Maryland law, if a judge or jury determines a defendant was the aggressor, was the first to raise the force to the deadly force level, that the defendant didn’t believe they were in danger or the defendant had a duty to retreat and did not, the defendant loses a Self-Defense argument. Also, if both parties, the user of force and the “victim” are willing combatants the court may rule that both are aggressors, and neither is entitled to assert a form of legally justified use of force.
Use of Force cases can turn who is labeled the aggressor but what this means is almost made on a case-by-case basis. Determining who is the aggressor is generally left to the judge or jury to decide, based on their own opinions, because the law in Maryland offers little guidance as to how to determine if someone is an aggressor. This is another example of why speaking with an attorney before the police could be critical to making sure all the facts necessary to support your legal use of force claim are brought out.
The best advice in this situation is the bigger the stick you carry, the softer you should speak. The feebler the person, the less likely they are to be labeled the aggressor despite being loud, aggressive, or even violent.³
¹ Dykes at 216 (1990).
² Whitehead v. State, 9 Md. App. 7, 13 (1970) the court found that provocation reduced the Murder charge to Manslaughter but did not allow the application of self-defense due to the fact that the defendant told the decedent “if we are going to fight, let’s go outside” at which point both parties went outside and engaged in a fight that resulted in the death of the decedent.
³ Maddran v. Mullendore, 206 Md. 291, 300 (1955).