Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
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Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
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In criminal law, an affirmative defense is a legal defense that you, as the defendant, have the burden of proving. It does not challenge the evidence that proves the elements of the offense. Instead, an affirmative defense asserts that the crime was excusable or justified.
Examples include:
Other affirmative defenses can defend against a civil lawsuit.
Affirmative defenses are criminal defense strategies that argue that the criminal offense being charged was somehow either:
In doing so, raising an affirmative defense silently admits that you committed the crime. Nevertheless, they argue that you should not be held accountable for it.
For example: Mark is arrested and charged with assault for punching Jerry in a fight. Mark claims that he punched Mark because he was under duress after Harry threatened to kill him if he did not punch Mark.
Importantly, it is up to you to prove an affirmative defense. You have the burden of proof and have to provide evidence that satisfies that burden.
You also have to raise an affirmative defense early on in the criminal case. You may have to raise it during the:
Failing to raise it early enough can be seen as a waiver of the defense.
Seven examples of affirmative defenses in criminal law are:
Entrapment is the affirmative defense that you were induced into committing a crime that you would not have committed, but for the inducement. It prevents police or other law enforcement officers from pushing you into commit a crime.
Some examples of inducement that amount to entrapment are when police:
Insanity is an affirmative defense that claims that you were insane at the time of the offense and could not have mental culpability for what you did.
Different states have different rules for determining legal insanity in a criminal case. Many, including California, follow the McNaghten Rule. In these states, you are legally insane if you did not understand either:
Proving an insanity defense does not mean that you will be released. Instead, you will be committed to a mental hospital.[3]
Necessity is the affirmative defense that you only committed the crime because you had to in order to prevent an even greater harm. Proving a necessity defense requires evidence that shows that:
Self-defense is an affirmative defense to a violent crime in a few states. Where it is not an affirmative defense, you can claim that you acted in self-defense and the burden of proving otherwise shifts to the prosecutor.[5]
Where it is an affirmative defense, you would argue that you:
Note that your right to use lethal force in self-defense may be more limited.
You should also be aware of your state’s stand-your-ground and Castle Doctrine laws.
State criminal laws have criminal statutes of limitation. These require law enforcement officers to file criminal charges before a set period of time expires. If they fail to do so, you can raise the statute of limitations as an affirmative defense.
The applicable statute of limitations depends on the state and the offense charged. Generally, in California, prosecutors have:
However, some serious offenses, including murder, do not have a criminal statute of limitations.
The mistake of fact defense argues that you misunderstood a particular fact and that this prevented you from forming an intent to commit the crime. To work, though, your mistake must have been in good faith and be both:
This defense is rare, and you should get the legal advice of a defense lawyer before deciding to rely on it.
Duress is an affirmative defense that claims that you only committed the crime because you had no other choice. According to the U.S. Supreme Court, in order for this defense to work, you must generally prove that:
Most states do not allow the duress defense to be raised against a murder charge. You may also be kept from raising the defense if you were responsible for getting into the situation where your life was put at risk.
Generally, you have the burden of proving affirmative defenses by a preponderance of the evidence. This means you have to show that the elements of the defense are more likely to be true than not in order to escape criminal liability.
Regular legal defenses focus on preventing the prosecutor from proving their case beyond a reasonable doubt. They aim to present evidence that conflicts with evidence that satisfies an element of the crime. By raising a reasonable doubt about your guilt, other legal defenses try to prevent a jury from deciding that you committed the crime.
Affirmative defenses essentially admit that you committed the offense. Instead, they argue that it was legally justified or excusable.
If you are suing someone after the defendant’s conduct harmed you, they can raise an affirmative defense. Among the most common types of affirmative defenses against civil liability that are recognized by federal district courts and most state courts in civil causes of action are:
Legal References:
[1] See People v. West, 139 Cal.App.2d Supp. 923 (1956).
[2] California Criminal Jury Instructions (CALCRIM) No. 3450 and California Penal Code 25 PC.
[3] See People v. Dobson, 161 Cal.App.4th 1422 (2008).
[4] See CALCRIM No. 3403.
[5] See CALCRIM No. 3470.
[6] Same.
[7] California Penal Code sections 800 and 802 PC.
[8] United States v. Martin, 753 F.3d 485 (4th Cir. 2014).
[9] See Dixon v. U.S., 126 S.Ct. 2437 (2006).
[10] Federal Rules of Civil Procedure, Rule 8(c).
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.