What are Affirmative Defenses?

Affirmative defenses are arguments that you make as a defendant that would provide a legal justification for your actions. In other words, when you plead an affirmative defense you aren’t saying that you didn’t commit the act that you’re accused of, but you are saying that you had a legal justification for doing it. Affirmative defenses change the dynamic of a trial, because normally the State needs to prove you guilty of committing the crime beyond a reasonable doubt. When you claim an affirmative defense, because you’re admitting that you committed the act the State has to DISPROVE your affirmative defense beyond a reasonable doubt. That means that the State needs to convince the Jury that you DIDN’T have the authority that you claim to have.

There are several affirmative defenses that can be pled in a criminal case, but I want to focus on the most common ones.

One that everyone has heard of is self-defense. Basically, the law allows for you to use a reasonable amount of force to protect yourself or another person from being physically harmed. The amount of force you use has to be proportional to the threat; you probably can’t shoot someone if they’re unarmed, for example. When you argue self-defense, the State needs to prove beyond a reasonable doubt that you used more force than was necessary to protect yourself from attack. If they convince the Jury that you used more force than necessary they can convict you.

Duress is another common affirmative defense. With this defense, you basically are arguing that you committed a criminal act because you or someone you cared about was being threatened with harm if you didn’t go thru with the crime. In movies, this is usually shown by a retired safe cracker coming out of retirement for one last job because his family has been kidnapped. In real life, it’s usually a situation where a co-defendant is working in a drug operation because their significant other threatens them with physical harm if they try to leave.

Entrapment is a defense that you can claim when the police cause you to commit a crime that you otherwise wouldn’t have done. We get a LOT of questions from people busted for drug dealing or prostitution who want to argue that they were entrapped because the undercover cop didn’t identify themselves as being police. That’s not how entrapment works. An entrapment situation would be more like an undercover officer asking you repeatedly to buy drugs, you finally telling him that you’ll buy something just to make him go away, and then being arrested for possession of drugs. You weren’t going to buy the drugs in the first place, but the officer was so insistent that you finally gave in and broke the law.

Necessity is a defense that you can claim when circumstances FORCE you to break the law in order to prevent a greater harm. You’ll see this most commonly in driving cases. If your license is suspended, it’s a criminal act for you to drive a car. Depending on how many times your license has been suspended, the crime could be a misdemeanor or it could even be a felony. But if you or someone with you gets injured and needs to get to the hospital, or you need to escape a dangerous situation like a street fight, you may have no real choice other than to get behind the wheel of a car. Under circumstances like that, you can argue that there was a legal necessity for you to drive, even though that action was illegal.

There are several other affirmative defenses available under the law, but these are some of the more common ones. Because each case is unique, we do encourage you to call an attorney and set an appointment to review the facts of your own case in order to determine what defenses are available to you if you’ve been accused of a crime.

At Razumich & Associates, our goal is to make sure that each of our clients receives the personalized attention that their cases deserve so that they can make the best possible decisions on important matters affecting their future. We personally meet with everyone who sets an appointment with our office, and we will take as long as necessary to make sure that every question you have is answered as completely as possible. That’s our promise to you: we’re Lawyers Ready to Fight, and we look forward to fighting for you.