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The Human Right of Self-Defense

The final, published version of this article from the BYU Journal of Public Law is now available. The article, which I co-authored with Paul Gallant and Joanne Eisen, argues that personal self-defense is recognized as a universal human right, and is the foundation of international law. The article critiques a report by University of Minnesota Law Professor Barbara Frey, written for the UN Human Rights Commission/Council, which contends that self-defense is not a right, but is instead, at most, an excuse similar to duress or insanity.

BruceM (mail) (www):
I think people should be allowed to assert any and all defenses to prosecution they desire. It seems highly improper for the legislature to be allowed to dictate what defenses criminal defendants may legally use. The right to trial means, if nothing else, the right to defend oneself. Ditto for due process, both substantive and procedural.

Yeah, there's a quote from Scalia is some case a while back directly contradicting my statement, stating that it is entirely proper for the legislature to define defenses. I humbly disagree, however.

A criminal defendant should be allowed to use any defense he/she chooses, from self-defense to diminished capacity to insanity to necessity to intoxication to "the victim was black" to "it was my birthday." Is the state really afraid of the birthday defense?

I'd have trials work this way: if the state proves each and every element of the offense beyond a reasonable doubt, then it creates a rebuttable presumption that the defendant is guilty (i.e. the defendant switches from presumed innocent to presumed guilty at that point). If the defendant can rebut that presumption - however he wants to - then the jury should find him not guilty.

I know Orin will vigorously disagree with my proposal, but I don't see why it would be prolematic. Moreover, it would preserve what should be your right to defend yourself in court however you wish. The concept of the state objecting to and excluding a defendant's line of defense because the legislature has "abolished the defense" is and has always been hard for me to believe. The legislature can say what is a crime, but why can it dictate how I can and cannot defend myself from charges of that crime?

If self-defense is merely an excuse/defense "given" by the kindness and generosity of the legislature, that means you can be put in a position, through no fault of your own, of either being killed by a criminal or being imprisoned (or even executed) by the state for murder. How can that not be a violation of fundamental human rights?
2.19.2008 6:19pm
Constitutional Crisis (mail):

I'd have trials work this way: if the state proves each and every element of the offense beyond a reasonable doubt, then it creates a rebuttable presumption that the defendant is guilty (i.e. the defendant switches from presumed innocent to presumed guilty at that point). If the defendant can rebut that presumption - however he wants to - then the jury should find him not guilty.
What do you have to establish in order to rebut the presumption?
2.19.2008 6:23pm
Thoughtful (mail):
Is there anything in legal circles corresponding to malpractice in medical circles? It would seem Barbara Frey is clearly guilty of committing it, and her gross errors could potentially be much more deadly than those committed by physicians. Can she lose her license over writings as full of errors as this?
2.19.2008 6:33pm
Nathan_M (mail):

I think people should be allowed to assert any and all defenses to prosecution they desire. It seems highly improper for the legislature to be allowed to dictate what defenses criminal defendants may legally use.

I don't understand this. If the legislature doesn't determine what defences are available to crimes then who would? Would you go back to the common law?

If your particular concern is restrictions on self-defence that doesn't seem like a good idea, as the common law right of self-defence is more limited than the right recognized by most state legislatures.
2.19.2008 6:34pm
BruceM (mail) (www):
What do you have to establish in order to rebut the presumption?

Lack of guilt. Convince 12 jurors that you should not be held responsible for the crime. Very straightforward, however you want to convince them. The presumption is you're guilty, you can attempt to rebut it however you see fit. I'm not sure what the burden of proof should be, though. As I recall, the SCOTUS has held it's okay for defendants to have to prove insanity by clear and convincing evidence. I can't recall a case addressing whether a defendant can be made to prove an affirmative defense beyond a reasonable doubt. I suppose the BOP can be left up to the legislature. Normally, though, it's by a preponderance of the evidence and I don't see a need to change that.

If I'm charged with murder and I can manage to convince a jury not to convict me because it was a full moon that night (the "full moon defense") then more power to me. I can only imagine what the state's response would be to the assertion of such a wacky, pointless defense, let alone the state's closing argument, and I can't imagine such a defense ever working. EVER. But, it should be my right to claim innocence based on a full moon. Ditto for more logical defenses like diminished capacity, necessity, and defense of property.
2.19.2008 6:43pm
Don Miller (mail) (www):

I don't understand this. If the legislature doesn't determine what defences are available to crimes then who would? Would you go back to the common law?


I think I understand what he is saying. The person who decides what their defense should be is the defendent. It would be up the jury to decide if that defense was adequate or not.

I will have to think about it more. When I was in high school I remember the Idaho Legislature considering removing insanity as a defense in Idaho. They discussed making insanity a factor in sentencing only.

Is that fair to a defendent? What role does a Legislature have in deciding Court Room policy and procedure?
2.19.2008 7:16pm
alias:
Bruce, get your own blog and quit hijacking this one.
2.19.2008 7:36pm
BruceM (mail) (www):
alias: I'm not hijacking (at least, I sure hope I'm not). My post here was directly relevant to the topic. If David thinks I hijacked his post, then I apologize to him. He should delete my post.

Don: Yeah that's precisely what I'm saying. Legislature decides what actions are crimes, defendants decide what their defenses should be. The jury decides if the defense, whatever it may be, is sufficient to rebut the presumption of guilt (established by the state proving all elements beyond a reasonable doubt). Reasonable doubt is still a "defense" that can be argued. The jury is instructed that only if the state established all the elements BARD does the jury take into consideration the defendant's defense to see if it rebuts the presumption of guilt.

Letting the state abolish specific defenses and letting the state define certain defenses so they're practically impossible to legally establish (such as the insanity defense in most jurisdictions) seems to be a fundamental violation of due process and the right to a trial. There is certainly a human right to defend oneself from criminal charges. How could there not be?
2.19.2008 8:09pm
Waldo (mail):
BruceM: Please elaborate how the right to self-defense in a legal proceeding relates to the right to personal self-defense and right to bear arms argued in the relevant article.
2.19.2008 8:22pm
therut:
Self defense is an instinctive reaction of human beings. If that is not a basic right I do not know what is. Certainly not a right to government paid for anything. Try to not throw up your arms in a defensive posture if really being attacked. It would take Jesus Christ himself to not do so. Fight or Flight.
2.19.2008 8:34pm
BruceM (mail) (www):
Waldo, when most people exercise their right to self-defense, particularly with the use of deadly force, they end up on trial, or at the very least, before a grand jury. When someone argues that self-defense is not a right but an excuse allowed to be used solely by the legislature's grace, I fundamentally disagree (that is, I agree with David that it's a human right. But I take it a step further and point out that legislatures should not be "giving" defenses in the first place - criminal defendants have the human right to defend themselves, and they should be permitted to do so however they see fit. If you feel showing a jury X evidence will get them to acquit you, you should have an absolute right to show the jury X evidence (so long as it's not perjured testimony... I'm certainly not saying defendants have the right to lie as a defense).
2.19.2008 8:47pm
wuzzagrunt (mail):
BruceM: what you are saying sounds like the "Dead Parrot Defense". Defendant is accused of murdering his brother-in-law, and his defense is: "He's not dead, he's pining for the fijords".

Seriously though, if every defendant accused of child rape is permitted to mount a defense--with lots of expert witnesses--that argues that 8 year olds are really capable of consent (combined with every other wacky defense, for every other crime), then innocent people rot in jail waiting for their trial to get on the calender. By extension, your reasoning could be used to argue multiple defenses during the same trial. Why not defend against a murder charge by pleading insanity, justifiable homicide, and that it was an accident?

In the interest of speedy trials, there has to be a point where the people get to say that a defense is not valid, and it can't be used in court.
2.19.2008 9:24pm
Joshua:
BruceM: Lack of guilt. Convince 12 jurors that you should not be held responsible for the crime. Very straightforward, however you want to convince them. The presumption is you're guilty, you can attempt to rebut it however you see fit.

First of all, last time I checked, the presumption in criminal cases is still that you're innocent, not guilty.

Second, it occurs to me that "lack of guilt" is far from the only way that you could "[c]onvince 12 jurors that you should not be held responsible for the crime". Jurors are human beings, after all, some of which are more pliable than others. Are you suggesting that defendants be allowed to resort to bribery of jurors, naked appeals to identity politics, or even terrorist threats to gain acquittal? If not, then how do you suggest that such "defenses" be proscribed, if not through legislation?
2.19.2008 9:27pm
gruest:
BruceM, why should juries be making policy decisions like which "defenses" are exculpatory and which aren't, rather than their traditional role of trying facts and leaving to judges to rule on questions of law? Why should juries, rather than legislatures (with, admittedly, an assist from judges) be making laws?
2.19.2008 9:37pm
BruceM (mail) (www):
Joshua, read my initial post regarding the flipping of the presumption of innocence (in my proposal).

Bribing jurors, threatening jurors, and committing perjury are not defenses. That's coercion, not convincing. However, if you want to rely on the "I'm a Republican" defense (or Democrat... not being partisan here) then more power to you. You can't really expect that to win. These crazy defenses are just for sake of argument. In reality I would never expect anyone to make them. I do fear people successfully using "I'm a Christian" as a defense. As much as that bothers me, I still feel it's your right to try to convince a jury to find you innocent because your Christianity either negates the mens rea or is somehow a justification for the crime. Certainly, such a defense would be vigorously negated by the state. I'd willing to let some guilty people get acquitted in order to preserve what I see as the right to fully defend onself.

Convincing the jury you're not guilty really comes down to either negating an element of the crime or coming up with a plausible justification for your actions nontheless. Many defenses go to the culpable mental state, such as diminished capacity (which is barred as a defense is many jurisdictions). Many of the "lame" defenses i've been describing go towards justification for the act. For example, if you are charged with murdering a black man and you feel you can justify your actions to the jury by doing nothing more than pointing out that the victim was black... it's gross and dispicable, but more power to you if you want to try it. Don't plan on being acquitted, and plan on being absolutely reamed by the state in closing arguments. Even in the most racist southern town, with an all-white jury, you can't expect that to work. Maybe the jury would impose a lesser sentence, but they'd likely do that anyway if they're racist bastards and don't value the victim's life due to his/her skin color.

wuzzagrunt: Do you think any jury would conclude that an 8 year old could consent? Now, if the age of consent is 18 and the defendant had sex with a mature-looking 17 year old who lied about her age and had a fake ID, he should certainly be allowed to argue mistake of fact as a defense to the statutory rape. How reasonable that mistake of fact is depends on the facts of the case (age, maturity, did victim lie about age, etc.). But to simply say "too bad, you had sex with her so you're guilty" is a travesty of justice, especially with the sophisticated teenagers of today, that know all about sex, statutory rape, lying about their age, and blackmail.

I don't know of any rule that says a defendant cannot argue multiple defenses at trial. It's nothing new or unique. Sure, self-defense is inconsistant with having an alibi, but not all defenses are inconsistant. I was out of town (alibi) and I was also insane at the time. Happens all the time.
2.19.2008 9:55pm
MikeR:
Is the report by Barbara Frey online somewhere?
2.19.2008 10:51pm
Daniel Chapman (mail):
BruceM: It sounds like you're arguing for Jury Nullification. If the legislature wants to say that a particular argument is not a defense to the crime, what they're really doing is defining the offense. If the statute says "It is a crime to kill someone, even in defense of your own life," then self defense can't be a defense, can it? And if a defendant argues self-defense, they're asking the jury to nullify the statute.
2.19.2008 11:03pm
Nathan_M (mail):

Now, if the age of consent is 18 and the defendant had sex with a mature-looking 17 year old who lied about her age and had a fake ID, he should certainly be allowed to argue mistake of fact as a defense to the statutory rape. How reasonable that mistake of fact is depends on the facts of the case (age, maturity, did victim lie about age, etc.).

This example shows how unjust your proposal is. First, the defendant will have to convince the jury to accept mistake of fact as a defence. If he succeeds in that, he'll have to argue about what the standard of proof should be, and who should bear the burden of proof. And it's easy to say "mistake of fact should be a defence", but what does that mean exactly? Is it enough if D honestly, but unreasonably, believes the victim is over 18? What if D just never thought about it, but had no reason to believe she was under 18? Or maybe D's belief has to be objectively reasonable? There are hundreds of possible standards.

These issues would have to be decided from scratch every single trial. This would be enormously time consuming, and the outcomes would be arbitrary. The verdict of a trial would depend as much on the composition of the jury as the facts of the case. And there could be no appeal however ridiculous the jury's view of the law.

Compare that with our system. Suppose a client came to me who charged with having sex with someone below the age of consent, but she says she thought he was older. Because the legislature has set out the defence, I can tell her that mistake of fact is an available defence if she thought V was older and she took all reasonable steps to ascertain his age. I also know that the burden of proof will be on the prosecution, and they will have to disprove the defence beyond a reasonable doubt.

I just can't fathom why you would the first system is more just than the second.
2.19.2008 11:07pm
blcjr (mail):
MkieR: Is the report by Barbara Frey online somewhere?


Here:

http://www.iansa.org/un/documents/salw_hr_report_2006.pdf
2.19.2008 11:10pm
Nathan_M (mail):

Is the report by Barbara Frey online somewhere?

Unfortunately the links in the Kopel paper are broken, but I think this is the report he's criticizing.
2.19.2008 11:11pm
Happylee:
And the funny thing is that I am accused of being paranoid when I say the UN is trying to disarm us common folk. Carry a gun and make the biggest carbon footprint ya' can; that's what I say.
2.20.2008 1:00am
Joshua:
BruceM: Bribing jurors, threatening jurors, and committing perjury are not defenses. That's coercion, not convincing.

The goal of a criminal defendant is not to convince a jury that you're not guilty. The goal of a criminal defendant is to convince the jury to return a "not guilty" verdict. The former is not the same as the latter; rather, the former is merely the typical and most honorable means to the latter. It is not the only possible means.

Now, I don't believe your proposal's intent is to make other, less scrupulous means fair game. But if I'm reading it right, it would indiscriminately strip away any and all statutory restrictions on defense, which would likely lead to the same effect. Baby/bathwater. Again, if legislation is not the appropriate way to curb this sort of thing, then what is?
2.20.2008 1:35am
pluribus:
BruceM:

[I]f you want to rely on the "I'm a Republican" defense (or Democrat... not being partisan here) then more power to you. . . . [I]f you are charged with murdering a black man and you feel you can justify your actions to the jury by doing nothing more than pointing out that the victim was black... it's gross and dispicable, but more power to you if you want to try it.

This borders on the absurd, if it hasn't gone over the line. Under this reasoning, why couldn't the defendant argue that it shouldn't be against the law to murder a Democrat? Or that there should be no law against murdering a black man? Or a foreigner? Or a gay person? Not only could the defendant argue this, but he could put on witnesses and offer evidence to bolster his defense. Let the jury decide if they like the defense. Maybe he would choose to argue that it shouldn't be illegal to murder anyone. It's up to each person to decide whether he wants to intentionally kill someone, not the legislature. A defendant charged with theft could argue in his defense that the theft victim had more money that he had and it shouldn't be a crime to take money away from somebody who has more money than you have. A defendant charged with forcible rape could argue that the victim was wearing a red dress and it shouldn't be a crime to rape a woman wearing a red dress. Witnesses would be brought in to establish exactly what color the victim's dress was. One witness might say it was pink, not really red. Another could say it was more orange than red. The victim could bring on his expert witness to establish that it was really, really red. And the jury would decide. With this kind of a legal system, we wouldn't need legislatures to pass laws. Just leave it up to defendants and juries to decide who should be punished and for what.
2.20.2008 7:41am
Richard Aubrey (mail):
If, according to Frey, it ought to be illegal to defend oneself from a, say, mugger, or if it's up to the state to decide so, what about defending oneself from the state? The state in question would probably think it a bad idea, but what about the UN?
2.20.2008 9:54am
markm (mail):
Compare that with our system. Suppose a client came to me who charged with having sex with someone below the age of consent, but she says she thought he was older. Because the legislature has set out the defence,

In some states, this is true. In others, the legislature has barred this defense from even being presented to the jury. And in still other states, sex with a 17 year old isn't statutory rape to begin with. And in Georgia, until the legislator corrected their error, a 17-year old boy could get a heavier sentence for consensual oral sex with a 15-year girl than for forcible rape. It still seems rather arbitrary and unjust to me, although it's better than a system where all affirmative defenses must be an argument for jury nullification.

But, moving to other types of cases, it can get worse. Some states bar DUI defendants from presenting scientific evidence concerning the accuracy of the breathalizer. South Carolina restricts the defendant from presenting evidence casting suspicion on someone else, even in a murder case. Apparently the legislature thinks it more important to convict someone than to convict the right person...

So I do support BruceM's proposal to some extent. Jury nullification was and should remain the last defense against legislators and executives who unthinkingly or deliberately produce and enforce outrageous laws. The defendant should be able to present any defense - and the judge should inform the jury if the law supports or opposes this sort of defense.
2.20.2008 9:55am
wuzzagrunt (mail):
Nathan_M wrote:

These issues would have to be decided from scratch every single trial. This would be enormously time consuming, and the outcomes would be arbitrary. The verdict of a trial would depend as much on the composition of the jury as the facts of the case. And there could be no appeal however ridiculous the jury's view of the law.

Nathan, you said it better than I did. The case I'm thinking of is tax evasion. As I understand it, if you are charged with criminal tax evasion, you are not permitted to argue that the 16th Amendment was improperly ratified, and/or that wages are not income, and/or that payment of taxes is purely voluntary. I don't know if this was a legislative decision to close off this avenue of defense, but it is essentially closed to a defendant nonetheless. IANAL, so correct me where I am mistaken.

This seems perfectly reasonable and just (though not equally just in every case) that a defendant does not have the option to multiply the length and cost of criminal proceedings, in order to argue points that are frivolous. Some things are well settled and we have to move on from that point.

If everything else is against you, put on lots of character witnesses who look dynamite in a miniskirt. They haven't taken that away from us yet.
2.20.2008 10:50am
autolykos:
So much for guaranteeing the right to life, liberty and the pursuit of happiness...
2.20.2008 11:45am
BruceM (mail) (www):
NathanD, Markm beat me to it, but in many states the defense of mistake of age (fact) with respect to statutory rape has been abolished. You screwed her, you're guilty. Doesn't matter that she looked 30, said she was 28, and had an ID that said she was 28, and was in a club buying you drinks. Guilty, 30 years in prison.

Wuzzagrunt: courts are still bound by law. It's been established by law that the 16th Amendment was properly ratified. You can't make misttatements of the law anymore than you can commit perjury as a defense.


pluribus: I don't see how any of those defenses could ever possibly work. Plus, anyone who actually made them would be subject to so much scorn and ridicule, it would make national news. It's an extreme example given solely to show what I mean by allowing people to defend themselves however they see fit. In reality I'd expect anyone who trie to use "victim was gay" or "victim was black" as a justification defense would not only be found guilty, but would be sentenced to a much longer punishment as a result. The defense basically concedes it was a hate crime. Any half-decent prosecutor would point that out in rebuttal and closing.

Verdicts already depend on the composition of the jury as much as they do the facts of the case. Ever talk to a jury after a verdict? If you have, then you know my schemata is already how they decide cases.

A friend of mine tried a civil case last year representing the plaintiff (a lawyer) who was fraudulently ripped off by a hardwood floor installer. He ordered X wood, they installed cheaper Y wood, in breach of the purchase agreement. He tried the case wonderfully (just have to take my word on that) but a little old lady on the jury was able to convince enough jurors that because the plaintiff was a lawyer, "he should have known better" (better than to enter a contract with this installer, it seems). One of the jurors even wrote a letter to my friend saying he tried the case wonderfully, but while the jury was on his side, they just couldn't overcome this one little old lady who managed to convince them all that the plaintiff shouldn't recover because he was a lawyer and thus was somehow negligent in entering into the transaction. They might have explained their logic better, I wasn't there to talk to the jury but I did see the letter.

Just to be clear, I'm only proposing that criminal defendants have a universal, human, and constitutional right to defend themselves from prosecution however they see fit (without breaking any laws). Civil cases are entirely different by their nature.
2.20.2008 1:02pm
Richard Aubrey (mail):
Bruce.
Maybe they didn't like lawyers and needed an excuse???
2.20.2008 1:28pm
Bratelle:
Wonderful paper... I especially like the reference to the Darfur crisis and the relevance of the state deciding which "rebels" have a right to arms. This certainly doesn't help the UN break through the US's paranoia that it is removing sovereignty and basic rights in favor of leftist utilitarian dialogue. I loved hearing about the different law systems and am now encouraged to read some international law scholars, especially since I am interesting in studying that area of the law come Fall. Thanks for sharing.
2.20.2008 2:44pm
BruceM (mail) (www):
Richard, possibly so.
2.20.2008 6:19pm