What Happens When You Make An Affirmative Defense In A Criminal Case

Let’s say someone tries to rob you and threatens you with a knife. However you are skilled in martial arts and manage to fight off the attacker, severely injuring them in the process. Are you guilty of a crime? The question may come down to an affirmative defense that you assert in court, which would most likely be self-defense. When you claim self-defense, or another affirmative defense, you are acknowledging that you committed the acts in question – but that you should be excused of criminal liability because of a complicating factor.

Affirmative defenses are treated somewhat differently depending on what state you are in, and the nature of the crime or the defense being asserted. But in most situations, if you raise an affirmative defense, that means you have to put up at least some evidence to substantiate your claim. You may also have to meet certain criteria or certain tests for your claim to be accepted by the court.

“Affirmative” means the burden of proof lies on you. In criminal cases generally, the burden of proof is on the prosecutor to show that you committed the crime, and had the intent to do it, beyond a reasonable doubt.

In most cases, however, the standard you need to meet is lower than what the prosecutors will have to meet. In New York, for instance, you must show by a “preponderance of the evidence” that your act was in self-defense. Put more simply, that means a reasonable person would find it more likely than not, based on the available evidence, that you are right about what happened. To disprove your claim, a prosecutor will have to meet the higher “beyond a reasonable doubt” standard. Types of affirmative defenses that are available and the standards you have to meet do vary somewhat depending on the state.

If you are in a situation where you think you may have an affirmative defense to possible criminal charges, it is important that you speak with an experienced attorney to help you make the strongest possible case.

As general information, here is a list of other examples of affirmative defenses that come up in criminal cases and how they typically work.

  • Self-defense (general): All U.S. states have some form of law that allows you to use force to defend yourselves when you are threatened with some form of imminent harm. The details do vary, though, depending on the state. In some states, for instance, you must attempt to retreat or escape, if possible, before using deadly force in order for this affirmative defense to apply. In some states, there is a “castle doctrine,” which allows you to defend yourself with force in your home or vehicle without having to retreat first.
  • Stand Your Ground: At least 30 states have some form of “stand your ground” statute that allows a person to use force against an attacker virtually anywhere, as long as they are “lawfully present.” Under “stand your ground” laws, there is no duty to first attempt to escape or retreat. Some states limit “stand your ground” to situations where the attacker has a deadly weapon. New York law, however, imposes a “duty to retreat” unless an attacker is in the victim’s home. You may recall the story of Trayvon Martin, a Black teenager who was shot and killed in Florida by George Zimmerman in 2012. Zimmerman was acquitted of second-degree murder over the killing and argued self-defense. While Zimmerman did not pursue a “stand your ground” claim, discussions about it nonetheless triggered numerous states to adopt the controversial laws.
  • Duress: It is possible in certain situations that you might be forced to commit a criminal act because not doing so might result in imminent death or serious harm. In that circumstance, you could claim the affirmative defense of “duress.” Laws concerning what constitutes duress vary from state to state. In addition to showing there was a threat of serious harm or death, you may have to show that the threatened harm was more serious than the damage caused by the crime, that the threat was inescapable and unavoidable otherwise, and that you did not enter into the situation voluntarily.
  • Entrapment: Generally speaking, in order to plead entrapment, you must show that you were harassed or coerced into committing a crime by government agents that you had no predisposition to otherwise commit. Entrapment often comes up in the context of government sting operations, where individuals acting on behalf of law enforcement might try to persuade you to participate in a crime (for instance, buying or selling drugs). When you show up at the scene, however, you will be arrested. In practice, it is difficult to prove entrapment because it can be hard to show that you were not “ready and willing” to commit the act in question. We strongly recommend contacting an experienced attorney if this happens to you.
  • Involuntary intoxication: Usually, when people think of “involuntary intoxication,” the situation that comes to mind is “date rape.” Sadly, it is not uncommon sometimes for a person to secretly adulterate a victim’s drink at a bar, for instance, to take advantage of them sexually. But involuntary intoxication also comes up in the context of affirmative defenses against crime. If a group of people is planning a burglary, for instance, and persuade you to come along and participate after drugging you against your knowledge or will, you may be able to plead this defense.
  • Insanity: Insanity pleas are more complex than they may seem at first glance, and are fairly rare in practice. This defense is used in only about 1 percent of all criminal cases. One issue is that it can be hard to meet the standards for showing that a mental disorder prevented you from knowing or understanding the wrongfulness of the conduct. Another issue is that if you are found not guilty by reason of insanity, often you will still lose your freedom and be committed to a mental institution. A few states also do not allow insanity pleas at all. It is sometimes possible, however, in certain instances, to demonstrate temporary insanity at the time of the crime and retain your freedom.