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Affirmative Defenses

Posted By Charlene Sabini, BA, PP, CLP, ALP, Wednesday, June 21, 2017

Affirmative DefensesDefinition

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

The affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so and, therefore, should be excused from all criminal liability.1

Defendants usually offer an affirmative defense only when they have basically conceded that the prosecution can prove all of the elements of the crime. A vigorous disputing of the prosecutor’s case in chief may not go down too well when the defendant proceeds to offer an affirmative defense.2

An affirmative defense does not just present itself. While a criminal defendant may decide to offer no evidence during trial, hoping the prosecution will fail to meet its burden, this approach would not work if the defendant has an affirmative defense. The defendant must offer proof at trial supporting the affirmative defense, meeting the standard of proof set by state law (usually a preponderance of the evidence), which is a lesser standard than the prosecution’s. If the jury concludes that, for example, a preponderance of the evidence supports the defendant’s claim of self-defense, it must acquit. 3

The word “affirmative” refers to the requirement that the defendant prove the defense, as opposed to negating the prosecution’s evidence of an element of the crime. An affirmative defense operates to prevent conviction even when the prosecutor has proof beyond a reasonable doubt as to every element of the crime.4 Some jurisdictions place the burden on the defendant to prove the defense, while others require that the prosecution disprove the defense beyond a reasonable doubt. Except for constitutional considerations, local law distinguishes between case-in-chief and affirmative defenses.5

Affirmative defense situations not classified as “denial of participation” or “legal exemption” all have the common characteristic that the accused’s conduct is not criminal because, in each case, the defendant acted without mens rea (intent).

Some Common Types of Affirmative Defenses

Several affirmative defenses are nationally recognized, with the more common ones being necessity, duress, self-defense, entrapment, and insanity.

Necessity
The defense of Necessity (or choice-of-lesser-evils) recognizes that the defendant is justified in violating a criminal law if (1) the defendant reasonably believes that the threat of personal harm or harm to others is imminent, (2) the only way to prevent the threatened harm is to violate the law, and (3) the harm that will be caused by violating the law is less serious than the harm the defendant seeks to avoid.6 In United States v. Holmes, 26 F. Cas. 360 (C.C.Pa. 1842), crew members threw 14 passengers overboard—in order to lighten the load—after their lifeboat began to sink. The court, however, rejected the defense of Necessity in this instance and convicted the sailors of manslaughter. Homicide, you see, is not included in Necessity.

Duress
This defense is an unlawful threat of imminent death or serious bodily injury, which induces a person to commit a crime. Again, homicide is not included. Duress is often viewed as a subspecies of Necessity because the defendant is faced with choosing between the lesser of two evils. The law suggests that the defendant do everything possible to escape or avoid doing the acts without being harmed. But in the strict sense, the defendant must necessarily commit a crime in order to avoid being killed or injured by the threatening party. Duress or coercion may also be raised in an allegation of rape or other sexual assault to negate a defense of consent on the part of the person making the allegation.

Duress can be distinguished from Undue Influence, a concept found more in the law of wills, in that the term involves a wrongdoer who happens to be a fiduciary (one who traditionally occupies a position of trust and confidence regarding the testator), the creator of a will. Duress may also exist where someone is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.

Self-Defense
This is the right for persons to use reasonable force or defensive force for the purpose of defending one’s own life or the lives of others, including, in certain circumstances, the use of deadly force. In order to establish Self-Defense, the defendant may be required to prove that (1) defendant was not the aggressor, (2) the defendant reasonably perceived an immediate threat of bodily harm, (3) the defendant reasonably believed that defensive force was necessary to avoid the harm, and (4) the amount of defensive force used was reasonable.7

In People v. La Voie, 395 P.2d 1001 (1964), Supreme Court of Colorado, 395 P.2d 1001 (1964), the court wrote:

When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real actual danger.

The doctrine of Retreat requires a defendant to forgo the use of deadly force and take advantage of an avenue of completely safe escape. At common law, and in a majority of states, Retreat is not required.  Moreover, a “completely safe escape” is seldom available in cases involving the deadly threat of firearms.

Entrapment
The Entrapment defense focuses on whether the defendant was induced to commit the crime by a government agent (typically an undercover police officer) and whether the defendant would have committed the offense without the inducement. The Subjective approach to Entrapment prohibits police officers from instigating criminal acts by people NOT predisposed to commit the crime. The Objective approach to Entrapment focuses on whether the government’s conduct in inducing the crime was beyond judicial tolerance.

In United States v. Russell, 411 U.S. 423 (1973), for example, the U.S. Supreme Court dealt with the Entrapment defense. Although an undercover federal agent had helped procure a key ingredient for an illegal methamphetamine manufacturing operation and assisted in the process, the court followed its earlier rulings on the subject and found that the defendant HAD a predisposition to make and sell illegal drugs whether he worked with the government or not.8

The reason behind allowing a defense of Entrapment is to discourage law enforcement officials from taking actions to induce someone not normally disposed to commit a crime to engage in a criminal act. Claims of Entrapment are most commonly used as a defense to what some consider to be “victimless crimes,” such as gambling and prostitution, committed against willing victims.9

Insanity
This defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused’s criminal responsibility, as this is a matter for the jury to decide. Being incapable of distinguishing right from wrong is one basis for being found legally insane as a criminal defense. In a majority of states, the burden is placed on the defendant, who must prove insanity by a preponderance of the evidence. In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond a reasonable doubt. In federal court (and in Arizona) the burden is placed on the defendant, who must prove Insanity by clear and convincing evidence (18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C)).

When invoking Insanity as a defense, a defendant is required to notify the prosecution. In some states, sanity is determined by the judge or jury in a separate proceeding following the determination of guilt or innocence at trial. In other states, the defense is either accepted or rejected in the verdict of the judge or jury. Even if evidence of Insanity does not win a verdict of not guilty, the sentencing court may consider it as a mitigating factor.

Conclusion
Legal defenses must draw a distinction between case-in-chief defenses and any affirmative defenses. Case-in-chief defenses (such as an alibi) merely deny some or all of the elements of the charged offense and call upon the prosecution to prove the essential elements beyond a reasonable doubt. Affirmative defenses, in contrast, introduce an additional element into the case and, depending upon the jurisdiction, the defendant may be given the burden to prove the defense.

So, unlike a negative defense, an “affirmative defense is one that admits the allegations in the complaint, but seeks to avoid liability, in whole or in part, by new allegations of excuse,  justification, or other negating matter.”10



Charlene Sabini, BA, CLP, PLS, ALP, is legal assistant for attorney David Vill in juvenile law in Eugene, Oregon. She is Director of Education for her local chapter, NALS of Lane County in Eugene, is editor of her chapter’s newsletter, NALS in Motion, and has earned three NALS CLE Awards. She proofreads on the NALS Editorial Board and contributes articles/essays for the NALS docket and @Law and is an Affiliate Member of the Lane County Bar Association. She also successfully petitioned the Oregon State Bar Association to allow guest speaking attorneys at non-lawyer education meetings to receive CLE credit—formerly not allowed in Oregon. She was a finalist for the NALS of Oregon Award of Excellence in 2017 and was selected as Member of the Year, 2017. She is also a 14-year volunteer with the Lane County Sheriff’s Office in Eugene, has served as the sheriff’s newsletter editor, currently serves as the county jail librarian, and earned the Jail Volunteer of the Year award in 2009 from The Oregon State Sheriff’s Association/Jail Command Council.

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