DAYTON, Ohio (WDTN) – State Rep. Niraj Antani (Miamisburg) called it “the burden shift.” Dr. Marge Koosed – who helped argue before the Supreme Court against Ohio self-defense law in 1987 – said it was a problem that needed addressing for decades.

The burden of proof in self-defense cases rested on the defense in the State of Ohio until March 2019. This meant if someone shot someone in self-defense, the burden of proof was on the shooter to prove their innocence.

Ohio was the only state in the country to prosecute self-defense cases this way at the time.

“That’s why we called it the burden shift,” Antani said. “Before the bill passed, people acting in self-defense had to prove they had acted in self-defense. Now the burden is on the prosecution, which it should be.”

Ohio Self-Defense Law Overview

People who go to court over a self-defense case have a presumption of innocence. Prior to the change in 2019, the burden was on the defendant. Ohio was the only state in the country where this was the case prior to 2019.

Homeowners and people in their vehicles can use deadly force in self-defense without having to retreat. This is referred to as the Castle Doctrine. Until the law was passed by the Ohio legislature and signed by Gov. Ted Strickland in 2008, people defending themselves in their homes and vehicles had to prove in court they acted in self-defense.

In Ohio there is a ‘duty to retreat.’ If you’re outside your home, business or vehicle; you have to try to escape danger before using deadly force against an assailant. This isn’t the case in states that have Stand Your Ground laws, where there is no duty to retreat during a confrontation.

Ohio goes to the Supreme Court

Earline Martin shot her husband in 1983 after she said he struck her in the head.

Marge Koosed – now professor emeritus at the University of Akron – worked on the case. Martin wasn’t allowed to submit evidence of battered women’s syndrome or abuse she suffered from her husband. The case reached the Supreme Court and a new judge at the time, Antonin Scalia.

“It was pretty funny,” Koosed said. “Scalia asked the prosecutor arguing for the state if the law put the burden of proof on the person acting in self-defense, and that’s what they were arguing to keep. The prosecutor said yes. Scalia just looked at him and dropped the pen he was holding. He sat there for a second, and his eyes turned to me. I said, ‘That’s why we’re here.'”

Martin lost her case 5-4, with Scalia siding with the dissent. Koosed believed the judges were confused by aspects of Ohio law.

“Everyone on the court at that time had voted at some level the burden of proof in murder and homicide cases should always be on the prosecution,” Koosed said. “I think they were confused about what they actually were voting on.”

Despite losing the case, Martin’s story led to changes. Ohio’s legislature allowed evidence of abuse to be submitted in court. Ohio Gov. Richard Celeste commuted sentences of women who were on death row or serving time in cases where they killed their husbands after suffering repeated abuse.

Another Supreme Court case changes Ohio law

In 2008, the Supreme Court decided in D.C. v. Heller that the 2nd amendment applied to use of a gun for self-defense and the amendment applied to all levels of government, not just the federal level.

Koosed said Heller was a game-changer for Ohio self-defense law. The state would have major problems constitutionally if it put the burden of proof on the defendant when the Supreme Court had ruled people could carry weapons for self-defense.

“Heller provided a new understanding to prosecuting attorneys,” Koosed said. “They knew they wouldn’t be able to prosecute cases if the burden of proof remained on the defendant. This led to the changes in the legislature.”

In December of 2018, the Ohio legislature voted to enact the new self-defense laws. Gov. John Kasich vetoed the law, which the legislature countered with an override after Christmas.

The website Law Writer has a listing of Ohio law codes for self-defense. If you have questions about self-defense law, contact local law enforcement.