Utilizing Affirmative Defenses in a Criminal Case

In a sporting competition, much like any contested criminal case, offensive and defensive strategies are available to both sides, which in the legal sense; include the prosecutor and the defendant.  Much like in sports, both offensive and defensive maneuvers, when coordinated in conjunction with one another, are required to obtain victory. 

Typically, a criminal defendant, as the name implies, begins each case on the defensive, responding to the offensive actions of the state prosecutor, who normally initiates action through arrest, booking, and formal filing of complaints against the defendant.  A prosecutor carries the burden of proof, and on the other side, the defendant defends his or her rights, including the right to remain free, save for conviction based beyond any shadow of a doubt. However, as most defendants eagerly recognize, defensive maneuvers, when combined with offensive measures of a legal team, are extremely effective in mounting a total legal defense case.

When defense counsel takes an offensive stance when representing their clients, this is known as executing an affirmative defense.  Affirmative defense actions, much like any defensive action using an offensive maneuver, attempts to stymie existing and future attempts of prosecutors to proceed with criminal charges and cases.  By setting the prosecutor’s case far enough back through affirmative defenses, the defense counsel may hinder a criminal prosecution, or in favorable outcomes, obtain an outright dismissal of criminal charges, in large part due to the affirmative defense actions taken.  

In general, state laws permit some variation of nearly ten (10) well-known affirmative defenses in criminal cases.  These crucial elements of criminal defense total strategy include the following affirmative defense measures:

• Alibi, which as the Latin translation approximates, states a defendant was “elsewhere” at the time of the alleged crime.  Coupled with sufficient proof of whereabouts away from a crime scene, an alibi is a solid affirmative defense strategy.
• Self Defense, which can also include the defense of others from grave injury or death, is an affirmative defense stating a defendant acted solely out of fear for their, or another’s, safety pending imminent use of force by another in an unlawful capacity. Some caveats to the affirmative defense of self-defense include speculation as to the specific events leading up to the use of self-defense actions, as well as the amount of force used and against whom this alleged self-defense action was used.
•  Duress, which states a defendant only participated in the alleged crimes under force or pressure from another individual or entity, which often implies or overtly threatens physical harm for a defendant if their participation in a given criminal action does not occur.
• Statute of limitations, which states a criminal statute, under which a given defendant is being charged, has applicable statute of limitations periods, which have already expired. 
• Entrapment, which asserts a government official, typically law enforcement officers, persuade a defendant to commit a given crime when no previous intention to commit such a crime existed.
• Double Jeopardy, which according to the Fifth Amendment, offers protections from being tried by government officials for the same offense multiple times. 
• Intoxication, which states a defendant was involuntarily placed under the influence of a substance, is an affirmative defense.  While on the other hand, voluntary intoxication may be another form of affirmative defense in mitigating an element of a criminal charge, typically the intent of the defendant at the time of the alleged crime.
• Mistake of Fact, which asserts a defendant made an honest mistake in good faith, and in turn, that mistake must be reasonable to some degree.  This defense, however, is not effective in strict liability crimes, which do not possess an element of intent.
• Mental Illness or Deficiency, which states at the time of an alleged crime that a given defendant was not of sound mind, not capable of understanding his or her actions, and is not criminally responsible for these actions due to mental illness. 
• Collateral Estoppel, which means, “issue preclusion”, is a legal term outlining an affirmative defense in a case where a state judiciary has already acquitted or prosecuted a given defendant for a given crime, which should preclude and prevent the federal judiciary from prosecuting a given case. 

Determining whether any of these affirmative defenses are applicable to a given case requires legal counsel, which can be received through a legal consultation