ico gavel 200In our December online journal internationally-known author and instructor Massad Ayoob gave an instructional interview about how making an affirmative defense in court to explain why one used force in self defense shifts the burden of proof.

Because courts and laws vary considerably from state to state, we wanted to drill down into this topic further and reached out to our Affiliated Attorneys for assistance. We asked our affiliated attorneys what is involved in arguing self defense to the courts in their state. Their comments to the below question follow:

What is the process in your state for presenting an affirmative defense of use of force in self defense?

What are the potential impediments that may result in a judge denying a self-defense argument?

If denied the ability to argue self defense, what steps would you take to get the best outcome for your client?


Thomas C. Watts III

Thomas C. Watts Law Corporation

8175 Kaiser Boulevard Suite 100

Anaheim Hills, CA 92808


There is no formal notice of intention to present a defense in California. However, Penal code §1054.3 requires a defendant to disclose trial evidence:

(a) The defendant and his or her attorney shall disclose to the prosecuting attorney:

(1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

(2) Any real evidence which the defendant intends to offer in evidence at the trial.

This does not apply to “Work Product” of the attorney which is a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.

The bad faith failure to exchange evidence may be the basis for an order preventing the presentation of that evidence.

Rob Keating

Law Offices of Robert Keating, PLLC

777 Main St Suite 600

Fort Worth, TX 76102-5368


In the December 2020 journal Massad Ayoob does an outstanding job of explaining how affirmative defenses can shift the burden of proof in a self defense case. However, it is important to realize that there can be some very technical differences from jurisdiction to jurisdiction and I am glad that the Network reached out to attorneys to talk about how things can vary depending on a State’s particular laws.

Probably the biggest difference between what Mr. Ayoob mentioned and the law in Texas is that in Texas, self defense is not an affirmative defense! Self defense is a defense to prosecution.

Texas does have an affirmative defense statute (Section 2.04 of the Texas Penal Code) which works essentially as Mr. Ayoob explained. But Texas also has what is called a “defense to prosecution” (Texas Penal Code section 2.03). Self defense, defense of others, and defense of property in Texas are all defenses to prosecution, not affirmative defenses. And a defense to prosecution works a little bit differently.

With a defense to prosecution, the defendant still bears the burden to produce enough evidence to raise the issue of self defense, but the burden of proof never shifts to the defendant. If the issue of self defense is successfully raised, then the prosecution must prove that the defense does not apply. And they must prove that it doesn’t apply beyond a reasonable doubt. Texas case law is clear that if a defense to prosecution is properly raised by the evidence, then the State has the burden to disprove that defense beyond a reasonable doubt.

One tricky issue with self defense in Texas is that it falls under what is known as the “confession and avoidance” doctrine. The catchy way to explain this doctrine is that you have to “admit it to get it.”  You can’t say, “I didn’t shoot that guy, but if I did, it was self defense.” You have to admit to every element of the offense, including the culpable mental state. That may sound strange if you shoot someone in self defense and end up charged with murder. After all, we are taught to shoot to stop the threat, not to kill someone. But the culpable mental state for murder in Texas includes either “intentionally or knowingly causing the death of an individual” or “intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes the death of the individual.” Either of those definitions can fall within legitimate self defense if explained correctly. The key is that you have to produce evidence that shows admission of each element, including the mental state or you risk having the judge deny your request for a self defense instruction to the jury.

In my opinion, Texas has very good statutory protection for legitimate uses of defensive force and deadly force. But even with good laws, it is important to understand how those statutes are interpreted by the courts. You won’t find the confession and avoidance doctrine in the Texas Penal Code. Noting in the defense to prosecution statute says that you have to admit every element of the offense in order to claim the justification provided.  Self defense laws are complicated. And that’s why the education provided by the ACLDN is so important for the legally armed citizen.


Steven M. Harris


14260 W. Newberry Road #320

Newberry, FL 32669-2765


In Florida, the defense of justification for using or threatening to use nondeadly or deadly force (in defense of property, self, others, or to prevent the imminent commission of a “forcible felony”) is available, and the jury should be instructed properly on it, when there is any evidence of it adduced at trial. The evidentiary burden is slight; the availability of the defense and the giving of related jury instructions do not turn on the quality or quantum of the proof. Of note: The defendant need not testify or put on witnesses for the defense to be allowed. It is common for a Florida appellate opinion to include language to the effect that in giving a requested criminal defense jury instruction, a trial court’s discretion is rather narrow as a criminal defendant is entitled to have the jury instructed on his or her theory of defense, if there is “any evidence to support” it. This is so even when the evidence is “weak or flimsy.” (A trial judge should not weigh the evidence for the purpose of determining whether justification instructions are appropriate).

The defense is asserted by a request that the trial judge charge the jury with either “Standard” instruction(s) pertaining to the justified use of nondeadly and/or deadly force, or some modified and additional instructions as may be pertinent to the trial record. The “Standard” jury instructions are not presumed to state the law correctly; the defense attorney must request instructions which correctly state the law. The State’s burden to disprove the defense remains unaffected; that is, to disprove justification by beyond a reasonable doubt, regardless of what instruction(s) the jury receives.

If there is concern a dispute as to the availability of the defense may arise, it could be addressed pretrial at the trial level and before the appellate court (by writ of prohibition) by making a pretrial motion for an “immunity” hearing under Florida Statute § 776.032(4).

Despite recent appellate case law erroneously suggesting or holding otherwise, the defense of justified use of force is only legally disallowed in a very narrow circumstance; when (under Florida Statute § 776.042(1)) the jury determines the defendant was “attempting to commit, committing, or escaping after the commission of, a forcible felony.” Thus, notwithstanding the caselaw, a defendant who had a duty to retreat imposed upon him/her because of being engaged in criminal activity or being in a place unlawfully, should still be able to fully assert the defense in a pretrial immunity hearing and at trial.

Contrary to popular belief, an “aggressor” who “provoked” the use of force against him/herself in Florida is not barred from asserting the defense of justified use of force; he/she is merely burdened with additional requirements akin to retreat or disengagement. See Florida Statute §§ 776.041(2)(a) and (b)).


S. Magnus Eriksson


20860 N Tatum Blvd. #300

Phoenix, AZ 85050


In Arizona, if self defense was raised traditionally the burden shifted to you to prove self defense by a preponderance of the evidence. About a decade or so ago the law changed so now if self defense is raised the burden shifts so the government has to prove beyond a reasonable doubt that it was not self defense.

The best way to raise self defense is to make statements to and show the police what you did at the scene as soon as possible after the event, with the advice and in the presence of your Network lawyer. If done that way I don’t see how a judge could properly deny the raising of self defense at trial under any circumstance other than if the facts do not support the self defense claim in any way. You would have a good topic for a special action or a very strong issue on appeal should the raising of self defense be denied at trial. A person guilty of a crime to which there is no defense should of course not admit that to the authorities (with a few exceptions such as duress) because if they do those statements become evidence which can be used against the person at trial.

In a legitimate self defense scenario on the other hand, we want the police to know what you did and why you did it and we want it to come directly from you so that it becomes part of the evidence precisely to prevent you from being incorrectly accused of a crime or somehow be precluded from raising self defense at a later time even if wrongfully charged. (Hopefully, the other evidence gathered will also support your explanations, further boosting your claim.) 

When our actions are legal and righteous we have no reason to hide them. That’s why it’s called an affirmative defense, or as I like to say: “The Hell yes, I did it defense, because if I hadn’t I’d be dead or seriously wounded and let me show what, when, where, how and why I had to use force to defend myself.”


Because this is a complex topic, the attorneys participating in the discussion provided longer than usual commentaries. We will publish the second half of this discussion in our February 2021 edition. Please come back next month to learn more.

To read more of this month's journal, please click here.