In both criminal and civil cases, you may have the option of presenting an affirmative defense. As you might intuit, an affirmative defense is an argument you present in the face of the claims against you. However, the nuances of how affirmative defenses work aren’t always so intuitive.
What exactly is an affirmative defense, and how do you use one in your case?
The Basics of Affirmative Defenses
An affirmative defense is a claim made by the defendant in a legal matter, and one that has the potential to exculpate them, negate the plaintiff’s claim, or otherwise mitigate the potential consequences of the legal issue.
That’s a wordy introduction to the concept of an affirmative defense because affirmative defenses can be presented in both civil and criminal cases.
In a criminal case, the plaintiff is going to be the State. According to the criminal defense team at SBBL Law, “Affirmative defenses are especially important in criminal matters, as they present an opportunity for the defendant to clear his or her name – or potentially have the charges against them reduced.” It might be true that you committed a series of actions that, under normal circumstances, would be illegal, but if you can show that there were extenuating circumstances to justify those actions, you might be able to get the charges dropped.
On the civil side, affirmative defenses can relieve you of illegal duty or mitigate the damages you would otherwise have to pay. For example, if someone sues you for breach of contract, and you have a solid affirmative defense to mount, you might be able to escape without having to pay damages.
Examples of Affirmative Defenses
It’s perhaps easiest to understand the concept of affirmative defenses when you see actual examples of affirmative defenses in action.
· Self-defense. One popularly recognized affirmative defense is self-defense, which often applies to both persons and property. Shooting a person with a gun with intent to kill is obviously a crime, but what if that person was trying to kill you or your family? Intuitively, most of us realize that killing someone exclusively to prevent them from killing you is justifiable, or at least reasonable when compared to the alternative. This affirmative defense allows a person to mitigate the charges against them, or possibly escape the charges entirely.
· Duress. In some cases, you may also be able to claim duress. Essentially, this means acting only because of the undue influence of another person. For example, if someone holds a gun to your head and tells you to rob a bank, this affirmative defense can show that you did not rob the bank of your own free will.
· Necessity. Similarly, there is an affirmative defense for necessity. Breaking a store window is against the law. But if you broke the store window to escape a fire because there was no other way out, you probably won’t be convicted of a crime.
· Fraud. In civil matters, you can show fraud as an affirmative defense. For example, you may have breached a contract only because the other side misrepresented what the contract was saying.
· Contributory negligence. In some states, contributory negligence is a significant factor in civil claims. Essentially, this means someone else contributed to the accident in a meaningful way, lowering your culpability.
How to Use an Affirmative Defense
Affirmative defenses are presented with your first filing with the court in most cases. You’ll reply to the claim or charges against you, and you’ll have an opportunity to present evidence for your affirmative defense as the case proceeds. Often, affirmative defenses are extremely important to judges and juries deciding the outcomes of cases.
Gathering Sufficient Evidence
If you want your affirmative defense to be successful, you need to gather sufficient evidence.
· Work quickly. Some forms of evidence are ephemeral, so work quickly to gather as much information as you can.
· Follow your lawyer’s advice. Your lawyer is going to help you gather evidence for your affirmative defenses, so follow their advice as closely as you can.
· Err on the side of caution. Always err on the side of gathering more evidence and raising more affirmative defenses. The more materials you have on your side, the better.
· Be ready to counter the other side. You need to be prepared for the opposing side to have a counterargument for your affirmative defense. Understand the weaknesses in your affirmative defense, and be ready to counter the opposing argument.
· Don’t reveal more information than necessary. Discovery rules force you to disclose much of your evidence, but don’t go out of your way to reveal more information than you need to.
Affirmative defenses exist to protect people and preserve our notions of justice. With the help of a good lawyer team, you can find and present the best affirmative defenses in your case.
