Claiming self-defense and refusing to self-incriminate at the same time
<p>Bob shoots Rob dead. Noone saw what actually happened, no video footage, nothing. Bob does not deny shooting Rob but claims it was self-defense. He does not go into details — invoking his right not to witness against himself.</p>

<p>Given that the mere fact of shooting a person dead does not itself prove murder/manslaughter beyond reasonable doubt, can Bob be convicted? Which legal doctrine would presume guilt unless he provides plausible explanation of the necessity of shooting for self-defense?</p>

<p>Jurisdiction — anywhere where Bob would normally be acquitted if he convinces the jury of self-defense.</p>

<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a> <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a></p>
<h2>The prosecution must eliminate self-defence beyond reasonable doubt</h2>
<p>The common law of self-defence has been replaced by statute law in ss<a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s418.html" rel="nofollow noreferrer">418</a>-<a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s423.html" rel="nofollow noreferrer">423</a> of the <em>Crimes Act 1900</em>.</p>
<p><a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-defence.html#p6-465" rel="nofollow noreferrer">This</a> part of the Judicial Commission of NSW’s <em>Criminal Trial Bench Book</em> spells out the law around it in detail.</p>
<p>In particular:</p>
<blockquote>
<p>In order for self-defence to be raised or left to the jury there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence: Colosimo v DPP [2006] NSWCA 293 at [19]. It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: Colosimo v DPP at [19]; but it must be raised fairly on the evidence: Mencarious v R (2008) 189 A Crim R 219 at [61], [78], [90]; Douglas v R [2005] NSWCCA 419 at [99]–[101]. A tactical decision not to raise self-defence does not of itself foreclose the obligation of the trial judge, in appropriate circumstances, to leave the issue to the jury: Flanagan v R (2013) 236 A Crim R 255 at [76].</p>
</blockquote>
<p>This means that while a jury can <em>always</em> acquit on the basis of self-defence, the judge only needs to give directions on it if it is an issue in evidence in the trial. That evidence may have been introduced by the defence or the prosecution, for example, the testimony of prosecution witnesses may raise the issue of self-defence. If it’s there, however it got there, the judge has to direct the jury to consider it. Quoting from the suggested direction:</p>
<blockquote>
<p>This right arises where two circumstances exist. The first is that the person believes that [his/her] … [specify act, for example, stabbing] was necessary in order to defend [himself/herself]. The second is that what [the accused] did was a reasonable response in the circumstances as [he/she] perceived them.</p>
<p>Although “self-defence” is referred to as a defence, on a charge of murder it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that [the accused’s] … [specify act, for example, stabbing] was not done by [the accused] in self-defence. It may do this by proving beyond reasonable doubt that [the accused] did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what [he/she] did in order to defend [himself/herself].</p>
</blockquote>
<h2>TL;DR</h2>
<p>The defence does not have to plead self-defence or introduce any evidence about it - it’s something the prosecution has to eliminate.</p>

<p>This is a broad topic, and the answer may vary depending on jurisdiction, but here's some of what LaFave has to say about the burden of proof for affirmative defenses:</p>

<blockquote>
  <p>As to the burden of production of evidence, it is uniformly held that
  the defendant is obliged to start matters off by putting in some
  evidence in support of his defense—e.g., evidence of his insanity, or
  of his acting in self-defense, or of one of the other affirmative
  defenses—unless of course the prosecution, in presenting its own side
  of the case, puts in some evidence of a defense, in which case the
  matter of defense is properly an issue though the defendant himself
  produces nothing further to support it. . . . </p>
  
  <p>What then of the burden of persuasion? [Previously], the courts were
  split into different camps. One point of view was that the defendant
  has the burden of persuading the fact-finder by a preponderance of the
  evidence of the existence of facts giving rise to these defenses. The
  other point of view was that, once the defendant has introduced some
  evidence of the defense, he need not persuade the fact-finder that the
  defense exists; instead the prosecution must persuade the factfinder
  beyond a reasonable doubt that the defense does not exist. . . .</p>
  
  <p>. . . .</p>
  
  <p>. . . [I]t has been held that the burden of persuasion may properly be
  placed upon the defendant as to insanity, extreme emotional
  disturbance, intoxication, duress, necessity, self-defense, defense of
  another, and various other defenses. . . .</p>
  
  <p>. . . .</p>
  
  <p>. . . [I]t remains for each jurisdiction to decide how to allocate the
  burden of proof in criminal cases as to so-called affirmative
  defenses. A few of the modern codes put the burden of persuasion on
  the prosecution as to virtually all issues, while a greater number
  allocate the burden to the defendant as to any matter which has been
  designated an “affirmative defense.” But many jurisdictions have not
  adopted any general statutory rules on burden of proof, thus leaving
  the matter to be worked out by the courts on a defense-by-defense
  basis. . . .</p>
</blockquote>

<p>1 Wayne R. LaFave, <em>Substantive Criminal Law</em> § 1.8(c) (3d ed. 2018) (citations omitted).</p>

<p>Self-Defense as a legal concept dates to Roman Law, which serves as a core of most Western Law.  Common Law and Civil Law and Article 12 of the Universal Declaration of Human Rights all affirm the right to self-defense and the use of reasonable force in the defense of one's self and others and one's property.</p>
<p>In the United States, where this scenario could occur (1 out of 38 gun deaths in the United States is justified, i.e. Self-Defense.  As the Reasonable force standard means that aiming a gun at another person in self-defense (ordinarily an assault charge), gun use in self-defense is thought to be much higher than this number).</p>
<p>Self-Defense is what is known as an Affirmative Defense.  The difference between an ordinary legal defense and an Affirmative Defense is that Affirmative Defense will cede that the actions that the defendant was charged with were done by the defense (In this case, Bob admits that he shot Rob and Rob did die from that bullet BUUUUUUUUT Rob was trying to rob Bob and so Bob shot Rob to prevent himself from becoming a victim of Rob's robbery of Bob's property.  (Sorry for that bad pun, but you set me up to make it)).</p>
<p>Because Bob admits to killing Rob he has just admitted to homicide... but if he can proves that it was justified homicide (per self-defense right) as opposed to unjustified homicide (illegal per statue or case law, depending on jurisdiction).  At this point, the burden of proof shifts from the Prosecution to the Defense and Bob must now prove that, despite the fact he willfully admits to committing a homicide, but that in this particular case, Bob was acting within his rights.  This means that Bob has waived his right to self-incrimination as the nature of his defense is self-incriminating.</p>
<p>To Long Didn't Read (with cookies!):</p>
<p>Innocent until Proven Guilty/Right agaisnt Self-Incrimination:</p>
<blockquote>
<p>Prosecution:  Bob took the cookies from the cookie jar.</p>
<p>Bob:  Not me, couldn't be? (Prove it!/I'm innocent and that's all I'm saying to you about that.)</p>
<p>Prosecution:  Then Who? (aka &quot;I have an eyewitness who said they saw you&quot;)</p>
<p>Bob:  Dick took the cookies from the cookie jar (aka Impeaching the witness/evidence, negation of evidence on account that some other Dick stole the cookies raising reasonable doubt.).</p>
</blockquote>
<p>Affirmative Defense:</p>
<blockquote>
<p>Prosecution:  Bob stole the cookies from the cookie jar.</p>
<p>Bob: Yeah, but Rob said he would kill my girlfriend if I didn't.  Here's my girlfriend Alice to testify to what I said and the location as to where she was held in Canada when Rob caught her while visiting her folks (Everyone knows Canadian girlfriends can be part of elaborate lies, but the story checks out, providing reasonable doubt to the crime, even though Bob admits to taking the actions he was accused of.  By the by, this is Duress, not Self-Defense... there are some different things, but for legal rights of the Defendant, they don't matter here.).</p>
</blockquote>
<p>Okay, now that we are out of the woods, the implication made by Bob not testifying to avoid self incrimination is that, Bob may have been party to something else that is illegal that was the reason Rob tried to attack Bob while Bob was engaged in that activity.  Generally, if you were attacked while engaged in a crime, self-defense does not apply... you cannot shoot someone for coming at you while you're mugging a third party and claim your aggressor was killed in your own self defense.   However, lets say that Bob is happening down his way and sees Rob robbing Roberta, a woman who is an illegal immigrant.  Bob acts in defense of Roberta, and kills Rob, but if he admits to this part of the story, Roberta could be deported, which he does not want to do.  If he says she is his witness, she gets the attention of law-enforcement and could be deported.  Or Bob was follow Roberta (this time a legal citizen) with intent to rob her... but then he sees Rob in the distance attack Roberta and proceed to rape her... Bob may be a mugger, but he's no monster and shoots Rob to save Roberta.   If he testifies to this, he will have to admit to a crime.</p>
<p>In these cases, Bob should DEFINATELY tell his lawyer the full story as attorney client privlege means the his lawyer cannot disclose anything Bob says (with few exceptions) to anyone and can advise Bob of the best course of action (though Bob can insist that he does not want to do this).  In both situations typically this would mean that Bob and his attorney would work out a deal with the prosecution (in the United States at least.  Plea bargains are frowned upon in most other districts, though not always illegal to make).  In the both scenarios, he need not explain why he is there, so long as he is legally within his right to be there, however, having Roberta as a witness is vitally important to him as it can confirm his story.  He need not prove beyond a shadow of a reasonable doubt an Affirmative Defense, but he needs to show some proof it could have happened.   In the later story, it may still be in his interest as generally, Statements against one's own interest (i.e. I was going to do a crime, when I heard someone discussing plans to do a way worse crime.) are generally more credible penitentiary statements because admitting to possible crime is not something you would want to do.</p>
<p>While it's unlikely that Bob's lawyer wouldn't advise him to not testify, Bob may still have bullheaded reason to believe he shouldn't and his lawyer would have to respect that choice of Bob's.</p>

self-defense murder fifth-amendment self-incrimination