Common Law Defence

Common law defense is very much plain old common sense. But what does that mean. Justification Defenses, Self Defense, Retreat Rule, Withdrawal, Sudden Escalation, Defense of others, Necessity, Duress, Mistake of fact, Mistake of law, Entrapment, Consent Capacity, and Insanity are all the common law defenses listed in our text. My favorite is the Self defense, Retreat and withdrawal. Here in Arizona in 1994 the burden of proof was on the prosecutor to prove that a person was wrong in defending himself from harm. In 1995 that burden of proof was change and placed on the victim to prove that he was in harm’s way and that he could not retreat or withdrawal.

In 2006 that was returned to “a person has no duty to retreat in any place they have a right to be.” While this bill was being debated in the legislature, Harold Fish was hiking in Coconino County, he was arrested and sentenced to prison for murder. In 2009 SB 1449 was introduced and passed.(AZCDL 2009)“A very important bill that retroactively applies the restoration of the “innocent until proven guilty” language, that passed out of the Legislature via SB 1145 in 2006, to cases pending at the time of SB 1145’s passage. The most egregious of these was the trial of Harold Fish, who was hiking in Coconino County when a man with a violent history and his two dogs attacked him. Mr. Fish was forced to fire at his attacker, killing him.”

After this bill passed the prosecutor did not retry Harold Fish citing not enough evidence to convict. When the burden of proof was on Fish to prove he was innocent, he could not, and was sentenced to prison however when the burden of proof is on the state to prove Fish acted wrong it could not. Therefore, common sense is not always equal to common law.

2009 Legislative Session Review, Volume 2009, Issue 3, Arizona Citizens Defense League, AzCDL’s Newsletter http://azcdl.org/AzCDL0709c.pdf Retrieved August 12, 2010