# What if self-defence were not an affirmative defence? **URL:** \ **Category:** Great Debates\ **Created:** [July 14, 2008, 1:40pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427 "2008-07-14T13:40:43Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [July 14, 2008, 1:40pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/1 "2008-07-14T13:40:43Z")
Currently self-defence is an affirmative defence. That is, it is for the defendant to prove it. What if it were not affirmative? That is, if the prosecution had to prove that it was not self-defence. How would it affect prosecutions, and how would it affect crime in the longer term? Hmmm… GQ, IMHO or GD? Since this is liable to be contentious, I’ll try GD and trust the mods’ judgement. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 14, 2008, 2:16pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/2 "2008-07-14T14:16:12Z")
In many jurisdictions, that’s how it works: > [@](#): > > It is the burden of the State to prove beyond a reasonable doubt that the defendant was not acting in self-defense. If you find that the State has failed to sustain that burden, then the defendant must be found not guilty. [Burden of Proof](http://www.oscn.net/applications/oscn/deliverdocument.asp?citeID=81448) > [@](#): > > Since the evidence in this case does raise the issue of self-defense, > the burden is on the State to prove beyond a reasonable doubt that the > acts of the defendant were not done in self-defense. If the State fails > to prove to your satisfaction beyond a reasonable doubt that the defendant > did not act in self-defense, then the State has not met its burden of > proving that the use of force was unlawful and you must find the defendant > not guilty. [http://dol.state.vt.us/sites/libraries/files/supct/168/97-386op.txt](http://dol.state.vt.us/sites/libraries/files/supct/168/97-386op.txt) The fact that its an affirmative defense simply means that the defendant has to raise it. The burden of persuasion can be assigned to a different party than the burden of raising an argument. Here are a few examples of jurisdictions where the defense does (or did) have to prove self defense: > **[State v. Addison](https://www.sccourts.org/media/opinions/HTMLFiles/COA/3082.htm)** [http://supreme.justia.com/us/456/107/](http://supreme.justia.com/us/456/107/) [http://supreme.justia.com/us/480/228/case.html](http://supreme.justia.com/us/480/228/case.html) ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 14, 2008, 2:47pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/3 "2008-07-14T14:47:30Z")
While in theory, this would add a burden to the prosecturo, I think in practice it doesn’t. The plain fact is that self-defense is rarely a plausible explanation. ---
**Author:** ![Scumpup](https://avatars.discourse-cdn.com/v4/letter/s/ce73a5/32.png) [@Scumpup](https://boards.straightdope.com/u/Scumpup)\ **Post date:** [July 14, 2008, 2:51pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/4 "2008-07-14T14:51:45Z")
> [@](#): > > The plain fact is that self-defense is rarely a plausible explanation. Cite? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 14, 2008, 3:02pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/5 "2008-07-14T15:02:38Z")
[QUOTE=smiling bandit] While in theory, this would add a burden to the prosecturo, I think in practice it doesn’t. The plain fact is that self-defense is rarely a plausible explanation. [/QUOTE] [http://www.ajc.com/metro/content/metro/gwinnett/stories/2008/07/03/dog\_park\_murder\_trial.html](http://www.ajc.com/metro/content/metro/gwinnett/stories/2008/07/03/dog_park_murder_trial.html) (man acquitted based on self defense) [http://www.jhnewsandguide.com/article.php?art\_id=3245](http://www.jhnewsandguide.com/article.php?art_id=3245) (ditto) [http://www.wkowtv.com/Global/story.asp?S=8612765&nav=menu1362\_2](http://www.wkowtv.com/Global/story.asp?S=8612765&nav=menu1362_2) (ditto) [http://query.nytimes.com/gst/fullpage.html?res=9B0DE3D71330F930A15753C1A961948260](http://query.nytimes.com/gst/fullpage.html?res=9B0DE3D71330F930A15753C1A961948260) (same) [http://writ.news.findlaw.com/colb/20031119.html](http://writ.news.findlaw.com/colb/20031119.html) (noting that Texas juries are “quite receptive” to self-defense claims) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 16, 2008, 2:05am UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/6 "2008-07-16T02:05:10Z")
[QUOTE=Quartz] Currently self-defence is an affirmative defence. That is, it is for the defendant to prove it. What if it were not affirmative? That is, if the prosecution had to prove that it was not self-defence. How would it affect prosecutions, and how would it affect crime in the longer term? [/QUOTE] That’s how it works in Canada. Under the Charter, the presumption of innocence means that the Crown has to prove the elements of the offence beyond a reasonable doubt, and also disprove defences beyond a reasonable doubt. The accused has to point to evidence to give an ‘air of reality’ to the defence, which is a very low threshold. If the defence meets that threshold, the onus is then on the Crown to disprove beyond a reasonable doubt. Hasn’t been that difficult to work in practise. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [July 16, 2008, 7:48am UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/7 "2008-07-16T07:48:51Z")
I prosecute in a jurisdiction where the prosecution has to disprove self-defence. Yes, it is a pain, but generally in all self-defence provisions there are requirements that the actions of the person raising self-defence be proportionate, or reasonable or the like. Issues like unreasonableness of response are strictly speaking matters of fact that must be proved beyond reasonable doubt, but they are more in the nature of a conclusion or judgment (in contrast to issues of primary fact), and so jurors readily make that judgment on common-sense grounds. In the case of murders, the problem is commonly that there were only two witnesses and one of them is dead, so the accused can assert pretty much anything he likes about the conduct of the deceased. On the face of things this is a potential difficulty for the prosecution, but in practice typical problems present themselves for the accused. If the assault from which he was supposedly defending himself is so dire, why does he not have injuries? If he killed using a weapon, why did he take it to the scene in the first place? If the deceased is supposed to have a weapon, where is it? If the accused says he took the weapon off the deceased, how? If he did and then used it, why did he do so, given that the deceased is as a consequence disarmed? And if he had a pre-existing motive to kill the deceased, it seems implausibly convenient for him to raise self-defence. You get the idea. Remember that self-defence can be disproved if the jury does not believe the accused person’s account on the grounds that it is unreasonably implausible. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [July 16, 2008, 4:57pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/8 "2008-07-16T16:57:41Z")
[QUOTE=Scumpup] Cite? [/QUOTE] Please. It’s impossible to cite something like that. But common sense will tell you it’s true. The situational aspect of most murders, fopr example, precludes any plausible self-defense claim. If the victim was not armed, odds are he wasn’t attacking the murderer. If the murderer didn’t suffer any bruises, he probably wasn’t being assaulted with fists. Plus, someone who kills in self-defense will attempt to contact the police, not escape. > [@Gfactor](#): > > [Gfactor posts a handful of cites of people who were aquitted based on Self-Defense] Dear Sir, You failed. Sincerely, Smiling Bandit. ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [July 16, 2008, 5:06pm UTC](https://boards.straightdope.com/t/what-if-self-defence-were-not-an-affirmative-defence/456427/9 "2008-07-16T17:06:12Z")
Might it be better to say that a claim of self-defense isn’t often successful in court, because in clear-cut cases of self-defense, no charges are brought? Midnight break-in, armed intruder with an extensive criminal record, upstanding homeowner puts one bullet through his heart and calls the police immediately - what prosecutor in the USA is going to try to prosecute that?