AFFIRMATIVE DEFENSES FOR CRIMINAL CASES
BY: Dr. Peter A. Barone, Esq.
Most
Common Defenses and Affirmative Defenses
In some criminal cases the defendant
admits committing a criminal act and a legal excuse or justification may exist
which is known as an Affirmative Defense. When a defendant uses or puts forth
an Affirmative Defense they are admitting to doing the action; however, they
are presenting a “justified reason” for what they did and should be excused for
taking that action based upon the Affirmative Defense. The defendant has to
prove the requirements amounting to the affirmative defense. The Law
Enforcement Official needs to understand what the defense needs to prove the
claimed affirmative defense so they can look into the situation to located
information and evidence to either prove it correct or to disprove it. If the
law enforcement official does not know or understand what comprises each of the
most common Affirmative Defenses, then they cannot know what to look for or
where to look for it. For a person to be guilty of a crime,
there are two things that must exist. The person must perform an action that is
prohibited by law, and do so with an intent or mental state that is described
by law. These two things taking place at the same time give rise to criminal liability. The law recognizes that there are times when criminal
liability can be proven, but society believes it is not proper to punish
the accused. When a defendant admits that he has done a prohibited act, and he
intended to do that act, but puts forward as a reason that it was done under a
recognized exception to punishment, he is claiming an affirmative defense (Garland and Stuckey, 2000).
Circumstances Where the Burden
Shifts to the Defense
In
a criminal case there are various types of defenses which can be put forth by a
defendant and one of those categories of defenses is that of an “affirmative
defense.” When a defendant puts forth an affirmative defense what they are
saying is “I did it.” However, they are
also saying that I did it; however, this is the reason that I did it and I want
to explain it because it is recognized at law to be a defense for me to not be
found guilty of this action. Now, if the defendant can prove this undeniably to
the prosecutor the prosecutor may even refuse to file the case and the
defendant would be free of the charges originally filed against them in the
affidavit by the law enforcement officer. If the prosecutor is not convinced
that the defendant is being forthright with their explanation they can file,
the charges and then it would go to trial and the defendant could do a
pre-trial motion or go to trial and present evidence demonstrating the
substantive argument of their affirmative defense. The prosecutor would still
have the burden of proving their case and either the decision would be made on
a motion for a JOA or by the jury after deliberation (Garland and Stuckey, 2000).
Requirements of the Generally Accepted
Affirmative Defenses
To claim an
affirmative defense a defendant typically must meet several requirements.
First, he must admit that he did the act that he is accused of doing, and
second evidence of the legally recognized exception to holding him responsible
must be introduced. This evidence may be part of the state’s case, or the
defendant may introduce such evidence himself. Throughout the United States,
each state has rules that may differ in the details of when a situation
qualifies for a particular affirmative defense, but the principals involved are
universal.
Types of Affirmative Defenses
A defendant
accused of assault may claim to have been intoxicated or insane, to have struck
out in self-defense, or to have had an alibi for the night
in question. Any one of these affirmative defenses must be asserted by showing
that there are facts in addition to the ones in the indictment or information
charging the defendant and that those additional facts are legally sufficient
to excuse the defendant. There are several affirmative
defenses which can be used by a defendant in a criminal trial. An 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 (Garland and Stuckey, 2000).
The typically recognized affirmative
defenses are:
·
Self-Defense
or Defense of Others
·
Necessity
Defense
·
Insanity
Defense
·
Duress
·
Involuntary
Intoxication Defense
Requirements for a Defendant to
Claim an Affirmative Defense
To claim an
affirmative defense a defendant typically must meet several requirements.
First, he must admit that he did the act that he is accused of doing, and
second evidence of the legally recognized exception to holding him responsible
must be introduced. This evidence may be part of the state’s case, or the
defendant may introduce such evidence himself. Throughout the United States,
each state has rules that may differ in the details of when a situation
qualifies for a particular affirmative defense, but the principals involved are
universal. The rules that
govern pleading in most courts require a defendant to raise all
affirmative defenses when first responding to the civil claim or criminal
charges against him or her. Failure to do so may preclude assertion of that
kind of defense later in the trial. In
criminal trials, the most common affirmative defenses include:
Self-Defense
Self-defense is a defense to certain criminal charges as well as to
some civil claims. Under both criminal law and tort law, self-defense is commonly asserted in
cases of homicide, assault and battery, and other crimes involving the
attempted use of violence against an individual. Statutory and case law
governing self-defense is generally the same in tort and criminal law.A person claiming self-defense must
prove at trial that the self-defense was justified. Generally, a person may use
reasonable force when it appears reasonably necessary to prevent an impending
injury. A person using force in self-defense should use only so much force as
is required to repel the attack. Non-deadly force can be used to repel either a
non-deadly attack or a deadly attack. Deadly force may be used to fend off an attacker who is using deadly
force but may not be used to repel an attacker who is not using deadly force
(Kotter, 2013).
In some cases, before using force that
is likely to cause death or serious bodily harm to the aggressor, a person who
is under attack should attempt to retreat or escape, but only if an exit is
reasonably possible. Courts have held, however, that a person is not required
to flee from his own home, the fenced ground surrounding the home, his place of
business, or his automobile.A person who is the initial aggressor
in a physical encounter may be able to claim self-defense if the tables turn in
the course of the fight. Generally, a person who was the aggressor may use
non-deadly force if the victim resumes fighting after the original fight ended.
If the original aggressor attacked with non-deadly force and was met with
deadly force in return, the aggressor may respond with deadly force. Courts and
tribunals have historically accepted self-defense as a defense to a legal action.
As a matter of public policy, the physical force or violence associated with
self-defense is considered an acceptable response to aggression (Kotter, 2013).
When using the affirmative defense of Self-defense,
it must be understood that this is an affirmative defense used by individuals
charged with crimes against the person of another such as assault and battery,
and in some cases murder. The actions are admitted but claimed to be legally
justified by the danger presented by the alleged victim. There are typical
elements to the successful use of self-defense to charges of a violent crime:
·
the
belief of the threat was reasonable
·
there
was no reasonable alternative
·
the
force used was no greater than necessary to end the threat
Each jurisdiction varies a bit on the
elements, or how they are measured. In most jurisdictions if there is some
evidence of self-defense raised, it becomes the prosecution’s burden to prove
beyond a reasonable doubt that the claim of self-defense is not justified. As a
legal defense to criminal charges, self-defense is hundreds of years old.
John Locke called self-defense “the
first law of nature”.
The
right of self-defense is called by Locke the first law of nature. Each
person owns his or her own life and no other person has a right to take that
life. Consequently, a person may resist aggressive attacks. John
Locke provide the philosophical basis for the American Revolution and the rights
of the people proclaimed by that revolution.
Defense of Others
When discussing the “Defense of
Others” a person may use force to defend a third person from attack. If the
defender is mistaken, however, and the third party does not need assistance,
most jurisdictions hold that the defender may be held liable in civil court for
injuries inflicted on the supposed attacker. In criminal cases a defendant
would be relieved of liability if she proved she had made a reasonable mistake
and this would be based on evidence demonstrating what the person saw, heard
and created the perception in their mind that a person was a victim and they
needed assistance against their attacker (Kotter 2013).
EXAMPLE
(Defense of Others)
If
you are walking down the street and you see a person with a gun in their hand
pointing it at someone and asking them for their money and they tell the person,
they are going to shoot him if he does not give up his money and the man with
the gun actually shoots the victim in the leg and say I am going to shoot you
in the head if you do not give me your money. At this point you have a
concealed weapons permit and you shoot the perpetrator who already shot the
victim once. This is a case of defense of others.
EXAMPLE
(Mistaken Defense of Others)
If
you are walking down the street and you see a person with a gun in their hand
pointing it at someone and asking them for their money and they tell the person,
they are going to shoot him if he does not give up his money and the man with
the gun cocks the trigger and aims the gun at the victim and the person with
the weapon then says that I am going to shoot you in the head if you do not
give me your money. At this point you have a concealed weapons permit and you shoot
the perpetrator who already shot the victim once. You find out that these are
friends and they are practicing their roles for a play and because it was a
really nice day they decided to practice this outside and not in doors. It
would be hard pressed for the prosecutor to charge the individual whose “mens
rea” was to provide defense of another because anyone who saw this would come
to the same or similar conclusion.
Necessity
In some situations, a defendant
will argue that while he knowingly engaged in the prohibited conduct, the
purpose of his doing so was necessary to prevent a harm worse than the harm
caused by his violation of law. This is the affirmative defense of necessity.
To be successful in using the Necessity Defense, typically a defendant must
produce evidence that:
The harm to be avoided was greater
than the danger posed by the prohibited conduct.
There was no reasonable
alternative.
The prohibited conduct ceased as
soon as the danger passed.
The defendant did not create the
danger to be avoided (Hail 2014).
Example
This may arise when there is a
medical emergency such as a pregnant woman in labor, or a significant injury
occurs. An individual may break traffic laws in an effort to get a distressed
individual to proper services when it reasonably appears there is no
alternative method to do so. There may be a decision to drive by someone whose
license has been suspended to get help for another and no other reasonable
means exist.
Insanity
This
is one of the most difficult and most non-used defense in the criminal law
system because it is one of the most difficult for the defense to actually
prove. The concept that it takes a particular mental state to commit a crime is
at the heart of the Insanity and Intoxication defenses. The theory is that if
someone was incapable of forming criminal intent then he is not guilty of
criminal activity. There are many variations on the Defense of Insanity
from the possibility of not guilty to a finding of guilty but mentally ill. It
is an incredibly complex area of law, as the human mind is a very complex
entity. A finding of not guilty by reason of insanity does not necessarily
mean freedom for a defendant (Hails 2014).
Duress
In criminal law, actions may sometimes
be excused if the actor is able to establish a defense called duress. The
defense can arise when there’s a threat or actual use of physical force that
drives the defendant—and would’ve driven a reasonable person—to commit a crime.
A classic example is someone holding a gun to the defendant’s head to force the
defendant to break the law. Some courts use the term “coercion” or “compulsion”
for this defense. (U.S. v. Logan,
49 F.3d 352 (8th Cir. 1995); State v. Baker, 197 P.3d 421.
Elements of Duress
The defense of duress typically has
these elements:
·
There is an immediate threat of death or serious bodily
injury to the actor.
·
The actor has a well-grounded fear that someone will
carry out the threat.
·
The actor has no reasonable opportunity for escape,
except by committing the unlawful act.(U.S.
v. Alzate, 47 F.3d 1103 (11th Cir. 1995); U.S. v. Gonzalez, 407 F.3d 118
(2nd Cir. 2005).
Involuntary Intoxication
Intoxication by either drugs or
alcohol may be a defense to certain actions; however, there are strict limits
on its use. If the state of intoxication was self-induced, the defense is
rarely effective, in that a person has diminished his own faculties and so is
responsible for the actions that follow. Involuntary intoxication is another matter,
and conduct that follows when a person has been drugged by another may be found
to be legally excused.
References
Garland, N.M. & Stuckey, G.B. (2000).
Criminal Evidence for the Law Enforcement Officer 4th Ed. Westerville,
OH.: McGraw Hill.
Hails
J., (2014). Criminal
Evidence. Stamford, CT.: Cengage Publishing.
Kotter
J. C., (2013). Criminal
Evidence 10th Ed. Cincinnati,
OH.: Anderson Publishing.
State v. Baker, 197 P.3d 421 (Kan. 2008).
U.S. v. Alzate, 47 F.3d 1103 (11th Cir.
1995).
U.S. v.
Gonzalez, 407 F.3d 118
(2nd Cir. 2005).
U.S. v. Logan, 49 F.3d 352 (8th Cir.
1995).
