Self-defense has been a hot topic over the years. And there is a fair amount of confusion over what self-defense is, when it can be raised by a criminal defendant, and the mechanics of how the issue is decided in a criminal case.

What is Self-Defense?

Self-defense is defined in A.R.S. 13-404. That section says, effectively, that self-defense is a form of “justification,” which, if applicable, is a defense to what would otherwise be a criminal act. An obvious example would be when a person is physically attacked, with no provocation on his or her part, and uses physical force against the attacker in order to defend themselves. While striking the other person might ordinarily be an assault (either a misdemeanor or a felony), under these circumstances the law says that the use of force is justified, and therefore a defense to the charge.

We should state that not every physical response to being struck by another person is classified as self-defense. There are numerous exceptions, from an attempt by a law enforcement officer to arrest you, to an assault which you provoked through words spoken to the other person, to name just a couple of examples.

But the question remains, if self-defense is raised as a defense, who must prove that the defense is valid? And how strong does the evidence of the defense have to be, to prevail in a criminal case?

The Burden of Proof in Self-Defense Cases

In some cases, responses to a criminal charge may include what are called “affirmative defenses.” These are defenses which, if sustained, will lead to a victory for the criminal defendant, and in many cases to a dismissal of the case. If the defense raised is an affirmative defense, the burden of proof is on the defendant, who must prove the defense by “a preponderance of the evidence.” This means, merely, that it is more likely than not that the defense is valid. But in the case of self-defense, the rules are entirely different.

The issue of affirmative defenses and the burden of proving them is covered under A.R.S. 13-205. It says that affirmative defenses raised by defendants in criminal cases must be proved by the defendant by a preponderance of the evidence. The statute goes on, however, to make a significant distinction among certain types of defenses. Specifically, it says that

  • Self-defense is not an affirmative defense.
  • The burden is on the defendant to raise the issue of self-defense and to present “evidence of justification.”
  • After the defendant raises the defense and presents evidence, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant did not act with justification.

This means that once any evidence of self-defense is presented, the state must disprove it beyond a reasonable doubt.

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