{"id":388513,"date":"2026-01-19T13:32:46","date_gmt":"2026-01-19T18:32:46","guid":{"rendered":"https:\/\/ability-fl-prod.internetbrands.com\/ability-law\/?page_id=388513"},"modified":"2026-01-19T13:25:04","modified_gmt":"2026-01-19T18:25:04","slug":"what-is-an-affirmative-defense","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/criminal\/criminal-law-basics\/what-is-an-affirmative-defense.html","title":{"rendered":"What Is an Affirmative Defense?"},"content":{"rendered":"\n
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What Is an Affirmative Defense?<\/h1>\n\n
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\n By Carol Clasby, J.D.<\/a> | Legally reviewed by Laura Temme, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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An affirmative defense<\/span> is a legal strategy where a defendant admits the alleged action happened but argues they shouldn’t be held responsible because of special circumstances. Common examples include self-defense<\/span>, insanity, duress<\/span>, and entrapment<\/span>. With this defense, the defendant must prove their case, but they face an easier standard of proof than prosecutors do in criminal cases<\/span>.<\/p>\n\n <\/div>\n\n\n\n

If you are sued in civil court or prosecuted for a crime, an affirmative defense<\/span> is a \u201cyes, but …\u201d 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\u2019re facing. Instead, with an affirmative defense<\/span>, you are saying that you are not accountable.\u00a0<\/p>\n

An affirmative defense<\/span> 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\u2019ll explain how affirmative defenses<\/span> work and discuss different types of <\/span>affirmative defenses<\/span> commonly raised in criminal and civil cases<\/span>.<\/p>\n

Understanding the Burden of Proof<\/span> and How It Shifts<\/strong><\/h2>\n

A case, whether civil or criminal<\/a>, 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<\/span>, they\u2019re known as the plaintiff. In a criminal case<\/span>, it\u2019s up to the prosecution (sometimes referred to as \u201cThe People\u201d or \u201cThe State\u201d) to prove the elements of the offense<\/span>.<\/p>\n

In either a civil case<\/span> or a criminal case<\/span>, 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<\/span><\/a>. 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.\u00a0<\/p>\n

In general, a prosecutor in a criminal case<\/span> faces the higher \u201cbeyond a reasonable doubt<\/span>\u201d burden of proof<\/span>. In a civil case<\/span>, the plaintiff must meet the lower \u201cpreponderance of the evidence<\/span>\u201d burden of proof<\/span>.<\/p>\n

A defendant can raise a justification for their actions, known as an affirmative defense<\/span>, that shifts the burden of proof<\/span> to the accused. Think of an affirmative defense<\/span> as the defendant saying, \u201cYes, but …\u201d They don\u2019t contest the alleged injury or crime. Instead, the defendant presents evidence that extenuating circumstances justify or forgive the action.\u00a0<\/p>\n

An affirmative defense<\/span> 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<\/span> is raised, he burden of proof<\/span> shifts to the defendant. This is key in a criminal case<\/span> because the defendant\u2019s \u201cpreponderance of the evidence<\/span>\u201d standard for an affirmative defense<\/span> is significantly lower than the prosecutor\u2019s \u201cbeyond a reasonable doubt<\/span>\u201d burden of proof<\/span>.<\/p>\n

Affirmative Defenses<\/span> to Criminal Charges<\/span><\/strong><\/h2>\n

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

Some of the more common examples of <\/span>affirmative defenses<\/span> against criminal liability<\/span> include:<\/p>\n

Self-Defense<\/span><\/strong><\/h3>\n

Self-defense<\/span> is one of the best-known affirmative defenses<\/span>. This is a common theme in movies and television shows. All states recognize some form of self-defense<\/span><\/a>, 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 \u201cstand their ground<\/a>\u201d wherever they may be.<\/p>\n

Insanity Defense<\/span><\/strong><\/h3>\n

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<\/span> doesn\u2019t let the accused off the hook entirely. They may be sentenced to serve time in a mental hospital rather than a prison.\u00a0<\/p>\n

The insanity defense<\/span><\/a> 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<\/a>.<\/p>\n

Duress<\/span><\/strong><\/h3>\n

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

Entrapment<\/span><\/strong><\/h3>\n

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