Affirmative defense

A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. In it, the defendant affirms only part of the plantiff's claim, essentially a defense of "mitigating factors". A clear example of an affirmative defense is self defense.^[1]

Description

In an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.^[2] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability.^{[citation needed]}

A clear illustration of an affirmative defense is self defense.^[3] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another's use of force was unlawful and that the defendant's conduct was necessary to protect himself.^{[citation needed]}

Mistake of fact

"Mistake of fact" is not an affirmative defense: it does not require proof but it does introduce doubt. In mistake-of-fact defenses, the defendant asserts that his mistaken belief prevents the establishment, beyond a reasonable doubt, of the required mens rea. It can be used with other defenses such as self defense. Self defense would still be available even if the defendant mistakenly believes that he was in imminent danger of harmful or offensive bodily contact.^{[citation needed]}

The Insanity Plea

Among the most controversial affirmative defenses is the insanity defense,^[4] whereby a criminal defendant seeks to be excused from criminal liability on the ground that a mental illness, at the time of the alleged crime, prevented him from understanding the wrongful nature of his actions.^{[citation needed]}

Most affirmative defenses must be pled in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction. The issue of timely assertion is often the subject of contentious litigation.^{[citation needed]}

Burden of Proof

Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.^[5] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence. In some cases or jurisdictions, however, the defense must only be asserted, and the prosecution has the burden to prove beyond a reasonable doubt that the defense is not applicable.^{[citation needed]}

Governing Rules

Rule 8 of the Federal Rules of Civil Procedure governs the assertion of affirmative defenses in civil cases that are filed in the United States district courts. Rule 8(c) specifically enumerates the following defenses: "accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense."^{[citation needed]}

Rule 11 of the Federal Rules of Civil Procedure requires that affirmative defenses be based on "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," and cannot consist of a laundry list of all known affirmative defenses.^[6]

Affirmative v.s. Negating defense

An affirmative defense can be different from a negating defense. A negating defense is one which tends to negate an essential element of the state's case. An example might be a mistake of fact claim in a prosecution for intentional drug possession, where the defendant asserted that he or she mistakenly believed that the object possessed was an innocent substance like oregano. Because this defense simply shows that an essential element of the offense is not present, the defendant does not have any burden of persuasion with regards to a negating defense. At most the defendant has the burden of producing sufficient evidence to raise the issue.^{[citation needed]}

Examples

civil law
- accord and satisfaction
- assumption of risk (when the plaintiff knowingly entered into a dangerous situation)
- authority
- consent
- defense of property
- estoppel
- contract specification
- contractual provision (when the defendant's liability for causing the plaintiff's injuries had been waived in the contract; however, these provisions are typically unconscionable in many situations.)
- contributory negligence (when the plaintiff's actions contributed to his own injury)
- fair use
- laches (similar to statute of limitation)
- merger doctrine
- repossession
- statute of frauds
- statute of limitations (too much time has elapsed between the tort and the complaint)
- waiver
criminal law

References

^ Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 320. ISBN 0-534-62892-3.
^ Brody, David C. (2001). Criminal law. Aspen. p. 241. ISBN 0-8342-1083-5. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
^ Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 320. ISBN 0-534-62892-3.
^ Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 321. ISBN 0-534-62892-3.
^ Oran, Daniel (2000). Oran's Dictionary of the Law. Delmar. p. 20. ISBN 0-7668-1742-3. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
^ Vail, Jeff (2010). "Checklist of Affirmative Defenses".^{[self-published source?]}

[1] Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 320. ISBN 0-534-62892-3.

[2] Brody, David C. (2001). Criminal law. Aspen. p. 241. ISBN 0-8342-1083-5. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)

[3] Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 320. ISBN 0-534-62892-3.

[4] Neubauer, David W. (2005). America's Courts and the Criminal Justice System. Wadsworth. p. 321. ISBN 0-534-62892-3.

[5] Oran, Daniel (2000). Oran's Dictionary of the Law. Delmar. p. 20. ISBN 0-7668-1742-3. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)

[6] Vail, Jeff (2010). "Checklist of Affirmative Defenses".^{[self-published source?]}

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Description

Examples

See also

References