What Is an Affirmative Defense?

Most people have heard the term affirmative defense in association with certain types of cases. Before we get into examples of affirmative defenses, let’s explain the terminology.

An affirmative defense is any defense in which the defendant has the burden of proving their allegations. In other words, if a defendant invokes an affirmative defense, the prosecution no longer has to prove their case beyond a reasonable doubt. Instead, the defendant must prove his allegations by a preponderance of the evidence. Hence the term “affirmative” defense.

Risks of affirmative defenses

The biggest risk involving an affirmative defense is taken on the burden of proof. Prosecutors have a very high burden of proof in their cases. When you raise an affirmative defense, the prosecutor’s burden of proof evaporates entirely. Now, you have the burden of proof, albeit lower than the prosecutor’s. So they can sit back and snipe your arguments as opposed to presenting a cogen theory of their own.

Types of affirmative defenses

In criminal cases, a defendant can say, “I did the crime that the prosecution says I did, but a special exception applies to my case.” These special exceptions include:

  • Self-defense, defense of others, defense of property – The law holds those harmless who act in defense of themselves, others, or their property. In other words, you cannot be held liable for assault, murder, battery, or any other crime in which you intervene to defend yourself, others, or property. Florida has the most elaborate self-defense laws in the nation making it more difficult to file charges in Florida than elsewhere in the U.S. when a defendant raises a self-defense or “stand your ground” defense in court. In fact, self-defense or stand-your-ground will not shift the burden of proof in Florida like it will in other states.
  • Insanity, diminished capacity – Insanity is an affirmative defense. You say, “I committed this crime, but I am not guilty because the law requires that I knowingly committed a crime.” In other words, you say that you would not have committed the crime had you been in your right mind. In that cause, the defendant must prove that they were not responsible for their actions because they had diminished capacity or insanity.
  • Duress, coercion, entrapment – The law holds those blameless who are forced against their will to commit crimes under duress. As an example, if someone has a gun to your family’s head and they demand you rob a liquor store, the law would not hold you responsible for that crime. Additionally, such defenses can be raised against law enforcement under certain situations. However, entrapment defenses are harder to win than you may imagine.
  • Mitigating factors – In some prosecutions, you can admit to the crime but say that you had untreated mental health problems. In these cases, the law may see fit to require treatment as opposed to jail or prison time. Mitigating factors can reduce your burden to the state.

Talk to a West Palm Beach Criminal Defense Attorney

If you’ve been charged with a crime, the West Palm Beach criminal attorneys at the Skier Law Firm, P.A. will discuss strategy with you, including the possibility of affirmative defenses. Call today to schedule an appointment and we can begin preparing your defense immediately.

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