State Bar of Wisconsin | Castle doctrine: Lawmakers considering law on self-defense

Joe Forward said:

But opponents, like the State Bar of Wisconsin’s Criminal Law Section, warn the proposed castle doctrine legislation could create unintended consequences, given the nuanced workings of presumptions and evidence law that are specific to Wisconsin.

“It could actually give a presumption in favor of a murderer,” said Marquette Law School Professor Gregory O’Meara, who testified before the Wisconsin Assembly’s Judiciary and Ethics Committee on AB 69 in May. The Wisconsin Senate’s companion bill is SB 79.

The Criminal Law Section’s opposition centers in part on the law of mistake, which holds that an actor’s belief may be reasonable even if that belief was mistaken. Section 939.43. Thus, a person who kills another person under the mistaken belief that deadly force was necessary to thwart an imminent deadly attack could still be found to have acted reasonably.

But O’Meara points out that under Wisconsin law, the presumption does not disappear, even in the face of evidence to the contrary. Thus, the law of mistake would benefit someone who lies.

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