Affirmative Defense

Affirmative Defense in the United States

A response to a criminal accusation that involves more than denial of the charge. An affirmative defense introduces new elements that provide an excuse for the criminal conduct. Among the more common affirmative defenses are insanity, necessity, duress, Entrapment (Criminal Process), and self defense. Undertaking an affirmative defense does not disturb the prosecutor’s obligation to prove the defendant guilty. At the same time, because the affirmative defense brings additional issues to a case, the defendant assumes the burden of proof of those matters con- taiaed it? She. affirmative defense.

See Also

Assistance of Counsel (Criminal Process) Insanity Defense (Criminal Process).

Analysis and Relevance

An affirmative defense is a strategy used in hopes of obtaining a not guilty verdict from a jury. An affirmative defense contains some risk because it typically concedes that the defendant was involved in a crime. The affirmative defense of duress or coercion, for example, admits the defendant was present at the crime scene, but that his or her presence was involuntary. Participation under duress raises doubts about the defendant’s intent to commit the crime. An affirmative defense is one of the few options available to defense attorneys when they represent clients facing very strong cases.

Notes and References

  1. Definition of Affirmative Defense from the American Law Dictionary, 1991, California

Meaning of Affirmative Defense

In plain or simple terms, Affirmative Defense means: A defense which does not necessarily refute an allegation but offers new matter which may defeat the right to recovery.

Affirmative Defense: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Affirmative Defense. This part provides references, in relation to Affirmative Defense, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Affirmative Defense by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Affirmative Defense and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Affirmative Defense or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Affirmative Defense and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Affirmative Defense. Finding these decisions can be challenging. In many cases, researchers about Affirmative Defense should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Affirmative Defense when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment