Claiming self-defense and refusing to self-incriminate at the same time 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.
australia new-south-wales The prosecution must eliminate self-defence beyond reasonable doubt The common law of self-defence has been replaced by statute law in ss418-423 of the Crimes Act 1900.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]. TL;DR The defence does not have to plead self-defence or introduce any evidence about it - it’s something the prosecution has to eliminate.
As a result, Bob becomes ill and dies. Could Eve be tried for Murder, Manslaughter, or some other crime, as she chose not to be vaccinated against a disease that she (in-directly) passed on to Bob and killed him? There are basically two distinct issues here. What is the duty? And if a duty was breached, what intent is necessary to breach it? There is not a legal duty to be vaccinated. There is a duty to use reasonable care not to hurt others. The duty not to hurt others could be satisfied by not seeing Bob in person, by wearing a mask around Bob or by having other non-transmission means available, in addition to being vaccinated. But Eve didn't do any of these things. We don't know if Eve had any reason to think that she presented a risk of infection to Bob because she could have passed the virus to him while she was asymptomatic. We also know, by the assumption of the question, that Eve was the source of the infection. But, in real life, proving the source of an infection beyond a reasonable doubt is very challenging or impossible. This must be established for any homicide crime. There is no indication that Eve knew she was transmitting the virus to Bob, or that Eve intended to transmit the virus to Bob (if she intentionally spat in Bob's face intending to infect him that would be a different matter). At most, her conduct was reckless, but if she was asymptotic and has no idea that she was doing something that was actually putting Bob at risk, her intent could be as slight as negligent (for tort law purposes only) or criminally grossly negligent. Since she lacked the necessary intent to commit murder (i.e. either an intention to kill, or an intention to inflict grievous bodily harm), she could not be guilty of the offense of murder. There are three types of voluntary manslaughter in England, none of which apply here: &quot;There are three types of voluntary manslaughter: that resulting from loss of self-control; that resulting from statutorily defined diminished responsibility; and killing in perseverance of a suicide pact.&quot; So, this leaves involuntary manslaughter as the most serious possible homicide offense. Involuntary manslaughter could encompass either reckless conduct (i.e. &quot;the unlawful act must be such that all sober and reasonable people would inevitably recognise it as an act which must subject the other person to at least the risk of some harm resulting therefrom albeit not serious harm&quot;) and is usually in furtherance of some other criminal offense, or in the case of &quot;gross negligence manslaughter&quot;, negligent conduct that is a far greater level of wrongdoing than the negligence that would suffice for civil tort liability. Gross negligence manslaughter is the most plausible charge and is itself a hard call that involves judgement and discretion on the part of the trier of fact (i.e. the judge in a bench trial, and the jury in a jury trial) that is exercised on a case by case basis considering all of the circumstances. Also, to be clear, the wrongful act in a gross negligence involuntary manslaughter case would be transmitting the virus (which could have been prevented multiple ways) and not failing to get vaccinated itself.
Engaging in unlawful conduct does not completely preclude a claim of self-defense under Wisconsin law ...but it does raise the bar in some circumstances: Criminal conduct by the defendant removes the presumption that &quot;force was necessary to prevent imminent death or great bodily harm&quot; when defending against unlawful forced entry to one's own property. A much higher burden on use of force is imposed if engaging in unlawful conduct that is &quot;of a type likely to provoke others to attack him or her and thereby does provoke an attack.&quot; Anyone intentionally provoking an attack by any means, lawful or unlawful, &quot;with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant,&quot; is not entitled to self-defense at all. Section 939.48 of Wisconsin law governs the standards for self-defense. 939.48(1) sets out the general standard: A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. 939.48(1m)(ar) provides presumptions in favor of the defendant and no duty to retreat when defending against unlawful entry to one's own property (an implementation of the castle doctrine), but those presumptions are removed by 939.48(1m)(b)1. if (among other things), &quot;[t]he actor was engaged in a criminal activity.&quot; More relevant to a case that occurred outside is 939.48(2), which lays out how provocation affects a claim of self-defense: (a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant. (b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant. (c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course]
Illinois has a &quot;Castle Doctrine&quot; which includes dwellings and other qualified buildings, but not a general &quot;Stand your Ground&quot; doctrine. Normally, to claim self-defense one has to show that they were not able to retreat and had to use force, but in Illinois you do not have a duty to retreat if you are preventing criminal interference with a dwelling or with real property that you or a family member owns, or you have a legal duty to protect (see Ill Code 720-2 and Ill Code 720-3). In order to use deadly force in any case, it must be to prevent a forcible felony, which is defined as (720 ILCS 5/2-8): &quot;Forcible felony&quot; means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual. So, assuming you have no legal duty to protect the 7-11, you would not be justified in using deadly force against rioters merely on the basis that they were committing a forcible felony against the building. On the other hand, if you were in the store or could see someone in the store being attacked, you may be able to successfully defend deadly force used to protect yourself or that person.
united-states This will vary somewhat by jurisdiction. But in most US states: Bob happily blabs to the media and exposes all the other jurors and what they've said and who they are. All for some clout, or money. If the authorities can trace these stories back to Bob (and they will put some effort into tracing them) Bob may well be found guilty of criminal contempt of court, fined, and sentenced to a short period in jail. He may also lose the right to be on a jury in future. Bob secretly tells the prosecution/defense that he'll do whatever they ask to manipulate the jury, for a favour. If this comes out, Bob could be convicted of soliciting a bribe, and if the scheme went forward, of both accepting a bribe, and jury tampering (or either, depending on the evidence). These are serious crimes, and Bob might well spend several years in prison. Bob is a nutcase, and acts in bad faith to manipulate the jury just for the hell of it. For example, &quot;filibustering&quot; and wasting everyone's time, without explicitly stepping into maliciousness. It is not unlawful to be a nutcase. The judge could order Bob removed from the jury if his disruptions were serious enough. If Bob actually violated th explicit instructions issued by the judge, he might be convicted of contempt, as in case 1, but this is rather less likely. A comment adds the scenario: Bob knows that the guilt has been proven beyond a reasonable doubt, but still tries to sway the jury for a not-guilty verdict (whether he tells other jurors what's going on or not) and will hang the jury if that fails, because he doesn't believe the defendant should get in trouble for it This is an instance of &quot;jury nullification&quot;. Bob is within his legal rights, and cannot be punished, nor removed from the jury. Bob can try to convince the other jurors that the law is unjust, or that the possible penalties are too severe for what the accused did, or of some other reason not to convict. If they agree, and acquit the accused, the acquittal stands, however contrary to the letter of the law. If they do not agree, there is a mistrial because of a hung jury. The prosecution may (but need not) retry the accused.
Under U.S. law the prosecution must prove that the defendant committed a particular crime beyond a reasonable doubt. So, it is not sufficient to prove that someone committed one of three crimes without proving which one it was. an alternative that I thought of later: someone is found somewhere where they can legally be, but in a situation where the only way they could have gotten there would involve trespassing through one of several properties owned by different people. Since the crime of trespassing requires the prosecution merely to show that someone was on the property of another without legal authorization to do so, it might be possible to prove this crime beyond a reasonable doubt without showing precisely which property was crossed, although I wouldn't be surprised if there was a split of authority among U.S. states on this question.
Legal Context This kind of argument is often called a "defense of others" defense which is available in every jurisdiction of which I am aware. Almost every state has a specific description of when this is permitted as part of their criminal code, usually in a general principles section at the beginning, or in the sections pertaining to crimes of violence. Some details vary from one state to another, but none of the facts presented in this hypothetical really push the envelope in terms of distinctions between one state's law and another. Most of the differences involve situations when the use of deadly force is allowed. For example, states differ regarding when deadly force allowed to prevent a burglary of your home or business which is in progress, particularly if it is possible to avoid a use of deadly force at all by retreating in a manner that puts you at no one at any significant risk of bodily injury. But, the scenario presented does not appear to involve the use of deadly force (although the definition of "deadly force" can be slippery and lead to some subtle variations in what is permitted from state to state). Another common nuance of variation between states involves the circumstances under which physical force or deadly physical force is authorized to make a citizens arrest, but this situation is also not implicated by your hypothetical. Once Thug is beat up, the scenario ends without any effort to detain Thug until the police arrive. Generally speaking, a defense of others defense that justifies a use of force under criminal law will also not give rise to civil liability in a lawsuit for assault and battery as opposed to a criminal prosecution for it. A Sample Defense Of Others Statute The pertinent section of the Colorado Revised Statutes (2016), strongly influenced by the language of the Model Penal Code (which never adopted in full by any state but highly influential stylistically in how U.S. criminal codes are drafted) is very typical of the majority rule regarding the defense of others and reads as follows (emphasizing the language relevant to the scenario in the question): § 18-1-704. Use of physical force in defense of a person (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Analysis of the Hypothetical Facts Is Paul guilty of assault and battery for attacking Thug, or would self-defense or some other standard defense apply? Paul is probably not guilty of assault and battery for attacking Thug because a defense of others defense justifies his actions. Paul is using physical force to defend a third person (and presumably himself as well once once he is involved in the fray) from what he reasonably believes to be the use of unlawful physical force by Thug, and generally, under those circumstances Paul may use a degree of force which Paul reasonably believes to be necessary for that purpose. Paul is most vulnerable in this scenario on the question of whether he reasonably believed that the degree of force he used was reasonably necessary for the purpose of defending Emily and himself from Thug's unlawful use of physical force, or whether he went further than what was reasonably necessary for a few minutes that left Thug "incapacitated and thoroughly bloodied". For example, suppose that Paul had already caused Thug to try to flee the scene after the first minute at which point Thug was slightly bruised and afraid of Paul, but was not at all incapacitated. But, suppose that despite this fact that Paul, awash with adrenaline from the fight, continued to pummel Thug for a couple more minutes as Thug repeatedly tried to flee the scene only to be dragged back by Paul. Suppose that Paul continued the fight after it was no longer necessary because Paul wanted to punish Thug for his mistreatment of Emily and to discourage other people from trying to attack Emily in the future, even after Paul knew that there was already no real risk that Thug himself would continue to use unlawful physical force against Emily no or in the near future. Under these circumstances, which aren't inconsistent with the hypothetical facts, if this extra couple of minutes caused Thug to be much more badly injured than he otherwise would have been if Thug had been allowed to flee after the first minute, then Paul could still be guilty of assault and battery, even though his actions were legally justified for the first minute of the fight. There is no indication that either Paul or Emily provoked the attack on Emily, or that either Paul or Emily was the initial aggressor, or that this was actually a pre-agreed dueling situation. So each of these circumstances which would be exceptions to the general rule that the defense of others is justified do not apply to this case. There is likewise no indication that Paul used "deadly force" as opposed to mere "physical force" in handling the situation. It is likely that Paul would have committed a crime if he had shot and killed Thug instead of beating him up, if Paul knew perfectly well at the time that he was capable of beating up Thug and making Thug go away for good as a result without resorting to a firearm, unless the attack on Emily was severe enough for Paul to reasonably believe that the attack was putting Emily at a real risk of serious bodily injury.