"You, In The Red Sweatshirt!"

My Crim Law professor has, perhaps, the harshest Socratic Method of any professor I've had so far. As a result, few students actually volunteer to answer questions in class (you have to understand that this somewhat of an anomaly in law school; it's rare that someone in class doesn't want to show off their superior intellect in an effort to dazzle the professor and make their fellow students envious). Case in point, he asked one poor student:

"And what do we know about the Supreme Court in 1977?"

How do you begin to answer that? I'm sure there's a lot to know about the court in 1977, but who knows what the professor is actually looking for? Worse yet is the professor's assertion that we most definitely know the answer he's looking for. It turns out that he wanted the student to mention that Burger was the Chief Justice in 1977 and the Burger court was more conservative (more friendly to prosecutors) than the previous Warren Court (something that I, at least, most definitely did not know).

So near the end of class on Thursday, we're talking about the difference between a defense and an affirmative defenses (the difference being that a defense involves a specific element of a crime and thus must be proven beyond a reasonable doubt by the prosecution unlike an affirmative defense where the defense has at least some burden of proof).

"Is self-defense a defense, or an affirmative defense?" The professor asked. Silence,

"Come on goddamn it. Is self-defense a defense or is it an affirmative defense?" He asked again waiting for someone to volunteer.

"Come on, this isn't that hard! Is self-defense a defense or an affirmative defense? Someone raise their goddamn hand! You in the red sweatshirt, answer the goddman question!"

I found myself wishing I hadn't worn my Nebraska sweatshirt that day. We often suspect that law professors' vision is based on movement and/or bright colors. Worse yet, the command to speak surprised me while as I was swallowing. My stammered, struggling reply was a meek "defense."

"Alright, it's a defense. Why?"

Getting a small portion of my composure back, I replied "Self-defense is a lawful killing."

"So what?"

"Murder is an unlawful killing, so the prosecution has to prove the killing was not lawful and not self-defense."

"Good. Any doubt in your mind, any doubt in your mind once-so-ever that self-defense is not an affirmative defense?"

By this time, the professor had sensed enough fear coming from me, any waffling or uncertainity on my part would only compounded the situation. "No, no doubt."

Well, as it turned out, the professor considered my answer right, but the Supreme Court considered it wrong. The courts have allowed the states to make self-defense an affirmative defense. That means if someone is threatening to kill you, your family, or even another person and you kill the threatening individual, the burden is on you to prove that the killing was lawful and not on the defense to prove it was unlawful. At least he didn't ask me to tell him what I know about the Supreme Court in 1928.