The Volokh Conspiracy

(2) the statutes and cases treating self-defense as an affirmative defense that must be established by the defendant rather than something that must be established as part of the prima facie case.

I might be wrong, but isn't this pretty much every Homicide statute out there?

Every example I can recall treated self defense as an affirmative justification type defense, much like privilege in the civil context.

The extent to which it's not such a defense seems to lie primarily in prosecutorial discretion. The prosecutor simply won't press charges if it's clear the action was justifiable self defense.


Further, I'm not even terribly sure how self defense could really work as anything other than an affirmative defense. Requiring a prosecutor to prove every murder wasn't in self defense would be pretty nonsensical. Treating Self Defense as a rebuttable presumption (once raised the prosecutor must prove it wasn't) would seemingly get the worst of both worlds. Every murder defendant would subsequently try to claim it, and raising it would almost certainly still be subject to some minimum standard of evidence, and if you do raise it the same evidence that shows you were guilty in the first place would probably serve to show it wasn't self defense.

unless it's treated as a rebuttable presumption once raised. Requiring a prosecutor to prove in every case that the Realistically however, that doesn't seem like

Ben P-

Perhaps it wasn't your intent, but your argument seems to boil down to "This can't possibly the right, because it would be too hard to implement."

It seems to me that 1) the right to self defense does not necessarily mean a right to kill someone else. 2) the right to self defense is not over-arching. That is, you cannot put your self into a situation where suddenly you need to exercise a right to self defense. "I had to shoot the cop, your honor, he was going to kill me before I got out of the bank." So the most likely outcome is that the prosecutor will only need guidance on where the proximate cause shakes out.

More likely, the right to self defense will depend on "What we may defend". Clearly I can defend myself- but what about my property?

Self-defense is a classic affirmative defense in burden of proof terms. Thus, in asserting self-defense, the defendant has the burden of production to assert and adduce evidence that the acts he took were done in self-defense, but the ultimate burden of persuasion for all elements of the offense (including non-justification) remains with the prosecution at all times.

On Dave's original question, I think the discussion following Orin Kerr's related post on this topic is fairly enlightening. One could argue that the right of self-defense is a pre-existing natural right (as recognized in Blackstone's Commentaries and even the Old Testament), and the Second Amendment right to keep and bear arms merely enshrines the availability of arms as permissible tools to use in self-defense where appropriate. Heller dealt only with the individual RKBA in self-defense in the home. Eventually the question will be addressed in other locations and contexts.

My view: Heller changes nothing regarding the right to self-defense. It recognizes there is a right to self-defense, and at best stands for the proposition that anytime you can use deadly force in self-defense, you can use "arms." But where deadly force was not justified before Heller, the case does not change anything -- you may still have a legal duty to retreat or use proportionally less-than-deadly force as per existing law.

"Self-defence works like this in Canada for murder, and every other crime, for that matter. If there is an "air of reality" to self-defence then it goes to the jury, whether the defence introduces evidence on it or not, and the prosecution must then disprove it beyond a reasonable doubt. It's not an especially difficult way to do things."

It's the difference between two burdens, the burden of going forward and the burden of proof.

Burden of going forward: to have something become an issue, there must be at least a little evidence supporting it.

Prosecution doesn't have to disprove every possible defense by the end of its case or face dismissal. It doesn't have to prove the defendant was sane if there has been no evidence of insanity, etc.

Burden of proof: once something does become an issue, one or the other party (in this case the prosecution) must disprove it or lose.