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.

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?

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

  • 1
    Good question – close to what I was wondering here.
    – feetwet
    Jun 12, 2019 at 23:01
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    To the extent that Bob has already testified that he shot Rob dead, he may not even be able to invoke a 5th amendment defense, at least not as regards any matters pertinent to the testimony already offered. That's one of the reasons you often hear people advising you to say nothing to the police (ever) without a lawyer, because, among other things, if you spill a few beans you may surrender your right to not spill more than that. Jun 13, 2019 at 7:34

4 Answers 4


The prosecution must eliminate self-defence beyond reasonable doubt

The common law of self-defence has been replaced by statute law in ss418-423 of the Crimes Act 1900.

This part of the Judicial Commission of NSW’s Criminal Trial Bench Book spells out the law around it in detail.

In particular:

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].

This means that while a jury can always 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:

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.

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].


The defence does not have to plead self-defence or introduce any evidence about it - it’s something the prosecution has to eliminate.

  • Very interesting. Glad you added the region tags to this. In the US, as far as I know (maybe some states are different, assuming you aren't being prosecuted by the feds), you don't get this sort of "freebie" self defense option. But I'm getting the impression this is the way OP was assuming things would play out. Jun 13, 2019 at 12:18

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:

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. . . .

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. . . .

. . . .

. . . [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. . . .

. . . .

. . . [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. . . .

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

  • You could improve this answer by adding a synopsis of what the long quoted section actually says.
    – Philipp
    Jun 12, 2019 at 14:17
  • @Philipp Basically, it says an affirmative defense has to be supported by some evidence, or it is not a defense.
    – Mohair
    Jun 12, 2019 at 20:32
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    @Mohair I understand that. But I think it should be in the answer.
    – Philipp
    Jun 12, 2019 at 20:46

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.

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).

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)).

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.

To Long Didn't Read (with cookies!):

Innocent until Proven Guilty/Right agaisnt Self-Incrimination:

Prosecution: Bob took the cookies from the cookie jar.

Bob: Not me, couldn't be? (Prove it!/I'm innocent and that's all I'm saying to you about that.)

Prosecution: Then Who? (aka "I have an eyewitness who said they saw you")

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.).

Affirmative Defense:

Prosecution: Bob stole the cookies from the cookie jar.

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.).

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.

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.

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.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Jun 12, 2019 at 23:02
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    "he has just admitted to homicide ... At this point, the burden of proof shifts from the Prosecution to the Defense and Bob must now prove..." This is the core of the question: what exactly makes the burden shift? Homicide itself is not a crime: certain forms of it (e.g. murder) are, so the burden of proving murder is on the prosecution initially.
    – Greendrake
    Jun 13, 2019 at 0:26
  • @Greendrake Standard legal doctrine, at least in common law jurisdictions: he who makes the claim must prove the claim. It becomes pretty crazy if you can make a claim and then the other side has to disprove it. Otherwise people would claim a billion insane things to drain resources and patience of the opponent, with the likely outcome they'll accept a very generous plea arrangement to avoid it or you'll get off free because one of your crazy claims wasn't disproved. A defense such as "self defense" is making a claim (that it was self defense), and so must be proven by those claiming it. Jun 13, 2019 at 11:23
  • @zibadawatimmy the self-defense claim is more of an answer to the question "why" rather than attempt to prove innocence. Bob doesn't need to prove innocence in the first place: the prosecution needs to prove guilt.
    – Greendrake
    Jun 13, 2019 at 12:12
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    @Greendrake Both sides will make and argue their cases in court; it's described as an adversarial system for a reason. Yes, the prosecution will have to try to prove that the legal requirements for a charge are met. But "self defense" is, at least in the US, a claim that must be substantiated; there is a legal bar to be met. It's not like there's some presumption of justified self defense in every case. The defense will provide evidence and arguments for it, and argue against the prosecution's evidence for why it qualifies as murder (or whatever). And vice versa. Jun 13, 2019 at 12:43

He would not be presumed to be guilty, but people get convicted based of murder when they say it was self defense in real life.

Typically, you don't just walk away even if you claim self defense. If there was a shooting death the officer is going to arrest the shooter and hold him during the investigation. I realize what you are trying to say, but it's not accurate as to what would actually happen.

An officer would start by examining Bob to see if there were any self defense wounds. If you claim that you had to shoot someone to save yourself and there is not a scratch on you, there's a very good chance you are lying. After hundreds of years of people claiming self defense when it is not that, people have grown accustomed to looking for the signs of self defense.

The shooter would get released if the investigation came up empty. He, most likely, would not just be let go.

  • in many cases, I wouldn't let anyone come near me before I shot them. That certainly happens with officers. They see someone with what they think is a weapon in their hand from across the room, they will shoot. If someone comes at me with a knife I'm shooting them too before they have a chance to wound me. One well placed knife wound can kill.
    – mark b
    Jun 12, 2019 at 18:49
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    @markb there would be knife or other weapon recovered then.
    – Putvi
    Jun 12, 2019 at 18:50
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    This doesn't at all address the question asked: can Bob be convicted? On what legal basis can guilt be presumed in the absence of justification, when an affirmative defence is used? You are far too focused on what law enforcement officers might do, despite the irrelevance of that to the question.
    – user4657
    Jun 13, 2019 at 3:49
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    It being a real situation doesn't make your answer appropriate or relevant. Law Stack Exchange is about what the law says and what the legal process is. Law enforcement is a very small part in either of those things - if they're involved at all, and in this case they're not.
    – user4657
    Jun 13, 2019 at 20:17
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    I've said many time as well, this isn't 'law enforcement chat' it's law stack exchange. When you go to law school, they don't focus on law enforcement much, if at all. they focus on the lawmaking process (legislative branch), the judicial branch a lot, and maybe a little about the executive (law enforcement). Law is written and the modified somewhat by case law. Law enforcement usually don't even know the law very well.
    – mark b
    Jun 14, 2019 at 16:14

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