What Is an Affirmative Defense?

If you are sued in civil court or prosecuted for a crime, an affirmative defense is a “yes, but …” way to respond. In other words, you are not necessarily contesting the alleged action that gives rise to the lawsuit against you or the charges you’re facing. Instead, with an affirmative defense, you are saying that you are not accountable. 

An affirmative defense is not available in all cases, but in the hands of a skilled defense attorney, it can be a powerful tool in the courtroom. In this article, we’ll explain how affirmative defenses work and discuss different types of affirmative defenses commonly raised in criminal and civil cases.

Understanding the Burden of Proof and How It Shifts

A case, whether civil or criminal, is built on a set of elements. The person who brings the lawsuit must prove each element of the case to win it. In a civil case, they’re known as the plaintiff. In a criminal case, it’s up to the prosecution (sometimes referred to as “The People” or “The State”) to prove the elements of the offense.

In either a civil case or a criminal case, the person being sued or charged is known as the defendant. The plaintiff or prosecutor must prove every element of the case according to the relevant legal standard. They bear what is known as the burden of proof. In some instances, the defendant can do absolutely nothing and still win the case if the plaintiff or prosecutor fails to prove all the elements of their case. 

In general, a prosecutor in a criminal case faces the higher “beyond a reasonable doubt” burden of proof. In a civil case, the plaintiff must meet the lower “preponderance of the evidence” burden of proof.

A defendant can raise a justification for their actions, known as an affirmative defense, that shifts the burden of proof to the accused. Think of an affirmative defense as the defendant saying, “Yes, but …” They don’t contest the alleged injury or crime. Instead, the defendant presents evidence that extenuating circumstances justify or forgive the action. 

An affirmative defense can get the defendant off the hook entirely in some cases, but they must prove every element required by the relevant standard. When an affirmative defense is raised, he burden of proof shifts to the defendant. This is key in a criminal case because the defendant’s “preponderance of the evidence” standard for an affirmative defense is significantly lower than the prosecutor’s “beyond a reasonable doubt” burden of proof.

Affirmative Defenses to Criminal Charges

There is some overlap between affirmative defenses in criminal cases and civil claims. However, many affirmative defenses against criminal charges rely on the defendant proving extenuating circumstances that mitigate their culpability or blame.

Some of the more common examples of affirmative defenses against criminal liability include:

Self-Defense

Self-defense is one of the best-known affirmative defenses. This is a common theme in movies and television shows. All states recognize some form of self-defense, including when the use of deadly force is permissible. Some states limit this defense to those victims defending their homes, while others allow victims to “stand their ground” wherever they may be.

Insanity Defense

A criminal defendant may claim they are not guilty of a crime due to mental illness. Proving that they meet the requirements for an insanity defense doesn’t let the accused off the hook entirely. They may be sentenced to serve time in a mental hospital rather than a prison. 

The insanity defense varies from state to state. Some states do not allow it at all. The states that do recognize it generally follow one of four legal standards for determining insanity.

Duress

In a criminal case, duress falls under the category of coercion law. If a defendant drove the getaway car after a bank robbery because the true criminals forced them at gunpoint, duress could possibly be used as an affirmative defense.

Entrapment

When it comes to making arrests, law enforcement must adhere to specific guidelines. Among these rules is one against entrapment. The specifics of entrapment vary by jurisdiction, but this affirmative defense generally requires your defense team to prove two things:

• The law enforcement officer induced you to commit the crime
• You were not predisposed to commit the crime before being induced by the law enforcement officer

If you suspect you have been entrapped, consider seeking legal advice from a criminal defence attorney.

Statute of Limitations

The statute of limitations is primarily considered an affirmative defense in civil court. Some criminal charges in certain jurisdictions have a time limit for filing. If a plaintiff or prosecutor does not file suit or charges against you within that time limit, you may have an affirmative defense. Serious crimes like murder often do not have a statute of limitations.

Affirmative Defenses in a Civil Lawsuit

While this article focuses mainly on criminal law, it’s worth noting that affirmative defenses also exist in civil cases. Common affirmative defenses against civil liability include:

• Statute of limitations has expired: State law establishes time limits for filing different types of lawsuits. If the plaintiff files their claim too late, the defendant can raise this as a defense.
• Res judicata or collateral estoppel: Both legal concepts enforce the principle that court decisions are final and cannot be relitigated. Res judicata prevents the plaintiff from bringing the same lawsuit against the defendant once a court has already issued a final judgment. Collateral estoppel (sometimes known as “issue preclusion”) bars the plaintiff from relitigating a particular fact or issue in a new lawsuit that has already been resolved in their original lawsuit.
• Contributory negligence and comparative fault: This defense argues that the plaintiff shares at least some of the blame for their own injury. Contributory negligence acts as a complete bar to the defendant’s liability to a plaintiff in a personal injury or tort case. Most states follow comparative negligence, which simply reduces the plaintiff’s compensation by the percentage they are found to be at fault. 
• Assumption of risk: Under this defense, the defendant argues that the plaintiff knowingly engaged in a risky activity. Common examples of these activities include horseback riding, skydiving, and riding a roller coaster.

These civil defenses tend to be more procedural in nature than affirmative defenses in criminal cases. Many are based on state and federal rules of civil procedure, but also shift the burden of proof to the defendant.

Work With an Experienced Criminal Defense Attorney

The ins and outs of affirmative defenses are complex. If you are facing criminal charges, part of your defense strategy may include an affirmative defense against the charges. Working with a criminal defense attorney is the best way to know if an affirmative defense applies to your case based on the specific facts and circumstances. The prosecutor must prove every element of the crime. Remember that if you raise an affirmative defense, you bear the burden of proving your lack of culpability for the crime. 

A capable defense attorney will review the charges against you and listen to your side of the story. If an affirmative defense is part of your defense strategy, they will know how to best wield this important tool on your behalf.