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Criminal Procedure?

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State of Washington

As I understand it, in a criminal trial, the defendant is entitled to present his theory of the case.

When using an affirmative defense, for example, such as Self-Defense, the defendant must produce some evidence supporting his theory.

Once evidence is presented, or exists on the record (the defendants burden of production has been satisfied), the burden then shifts to the prosecution to disprove Self-Defense beyond a reasonable doubt.


1.) In or on the record? What does this mean?

2.) Is mere testimony alone, enough for evidence to be considered "in", or "on the record"?

3.) What is an offer of proof?

4.) Is it something that must be put on in order for something to be considered in or on the record?

5.) Once evidence has been produced, does the burden shift automatically?

6.) Or does someone have to declare or say something?

7.) Who is ultimately responsible to say something? Defense Council?, or the Court?


Senior Member
On the record means in open court where the court reporter is taking it down, as opposed to off the record in chambers, in the hallway, etc. Trial testimony will always be in or on the record, as will any court proceedings in a case. An offer of proof is basically an attorney's advance justification or explanation to the court, out of the jury's presence. In this context, a court might require defense counsel to make an offer of proof regarding the self-defense evidence he intends to proof so that the court can assess in advance whether there is "some evidence." You could say the burden shifts automatically, but the jury has to be informed in the instructions who has the burden.

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