In any criminal case that is brought before a judge, it is the responsibility of the prosecution to prove beyond a reasonable doubt that the defendant is guilty of every offense that is charged against him or her. They must prove specific components, or elements of the crime, which are rooted in conduct, mental state, intent, and the harm that was done. All these components make an action criminal.

During a criminal trial, the prosecution introduces evidence and witnesses to prove each of the elements necessary to get a conviction. All the while, the defendant is doing all they can to disprove or discredit the evidence and witnesses. Typically, this is done by cross-examination and objection to the admission of the evidence or witness. The defense will also introduce evidence.

The outcome of a criminal case often depends largely on which side has the best, most compelling evidence and who can use that evidence to either prove beyond a reasonable doubt (prosecution) or cast doubt on the evidence against the defendant (defense). A case that results in an acquittal likely had insufficient evidence introduced to convince the judge or jury, or there was enough evidence presented by the defense that cast doubt on the prosecution’s evidence or case.

The burden of proof is on the prosecution, and they must meet that burden to get a conviction, casting doubt on the prosecutor’s case is one way to get an acquittal – but it isn’t the only way.

The defense can use an affirmative defense which can prevent conviction even if the prosecution’s case is proven beyond a reasonable doubt or the defendant admits to the act.

What is an Affirmative Defense?

Affirmative defenses are facts or a set of facts presented by the defendant that differ from those alleged by the prosecutor, and if the defendant proves these facts by a preponderance of the evidence, it will either reduce the charges or defeat the legal consequences of his or her unlawful conduct.

The primary purpose of an affirmative defense is to prevent a conviction even though the defendant committed the criminal act. 

Example of Using Affirmative Defenses

For example, in a murder case, the basic elements are:

  • The killing of a person
  • The killing was done by the defendant
  • The person intended to kill the victim

To illustrate this, say a defendant is standing trial for murder. The prosecution has a solid case showing that the defendant acted with intent to kill. It’s even possible that the defendant admits to the killing. However, the defendant claims self-defense, stating that he shot the person after the person attacked him. There is no doubt that the victim died and that they were killed at the hands of the defendant. It may be even proven that the action was intentional. However, if the jury believes that the defendant did truly act in self-defense, then he will not be convicted of that crime. In such a case, self-defense is an affirmative defense, which must be proved by a preponderance of the evidence. 

A real-life case where an affirmative defense was used is the case of George Zimmerman who fatally shot Trayvon Martin. Mr. Zimmerman was facing a charge of second-degree murder and manslaughter but was acquitted because his attorney argued the affirmative defense of self-defense, which was accepted by the jury resulting in an acquittal.   

How Does a Defendant Prove Affirmative Defenses?

Just like any other claim made in a trial, an affirmative defense must be proven. There must be evidence to support it for it to meet the standard of proof that is set by the state law. In New York, that standard is the preponderance standard which means that the party meets the burden of proof when they convince the jury or judge that the chance that their claim is true is greater than 50%. It is worth noting here that the prosecution must prove beyond a reasonable doubt, so their burden of proof is greater.

If the jury concludes that the defendant’s affirmative defense is supported by a preponderance of the evidence, then they must acquit.

Let’s go back to our crime of murder to demonstrate how the defense may use regular defense versus affirmative defense:

  • Regular Defense – Murder – There was no murder, no one died, there is nobody. The person accused was falsely accused, the victim of mistaken identity, etc.
  • Affirmative Defense – Murder – Self-defense, insanity, defense of another.

What are the Types of Affirmative Defenses?

There are two types of affirmative defenses:

  • Justification Defense – These defenses acknowledge that the defendant did commit the act or offense, but they had a very good reason such as the defense of others, self-defense, law enforcement defense, defense of property, or necessity.
  • Excuse Defense – These defenses provide an excuse for the defendant’s admitted unlawful actions. They may claim insanity, intoxication, duress, infancy, or diminished capacity.

What are Common Affirmative Defenses?

Several affirmative defenses can be used depending on the crime and the circumstances surrounding it.

  • Self-defense
  • Intoxication voluntary/involuntary
  • Police misconduct
  • Insanity 
  • Mistake of fact
  • Parent’s right to discipline a child
  • Coercion
  • Unconsciousness 
  • Accident
  • False accusation
  • Defense of others
  • Necessity
  • Double jeopardy
  • Entrapment
  • Duress
  • Mistaken identity

This is not an exhaustive list and not all of these defenses will work for all criminal cases. Your defense attorney is the one who is best able to determine what defense is right for your case.

Federal Affirmative Defenses

Under the Federal Rules of Criminal Procedure – Title IV – Rule 12, there are several defenses listed, including affirmative defenses. These include duress, entrapment, renunciation, and mental disease or defect. There are also defenses that specifically address the mishandling of the case, investigation, or prosecution. 

Rule 12.2 Notice of an Insanity Defense; Mental Examination – (Rule 12.2 addresses an insanity defense and the procedure that must be followed by the defendant who asserts it.)

(a) Notice of an Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged offense must so notify an attorney for the government in writing within the time provided for filing a pretrial motion, or at any later time the court sets, and file a copy of the notice with the clerk. A defendant who fails to do so cannot rely on an insanity defense. The court may, for good cause, allow the defendant to file the notice late, grant additional trial preparation time, or make other appropriate orders.

(b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must—within the time provided for filing a pretrial motion or at any later time the court sets—notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial preparation time, or make other appropriate orders.

(c) Mental Examination.

(1) Authority to Order an Examination, Procedures.

(A) The court may order the defendant to submit to a competency examination under 18 U.S.C. §4241.

(B) If the defendant provides notice under Rule 12.2(a), the court must, upon the government’s motion, order the defendant to be examined under 18 U.S.C. §4242. If the defendant provides notice under Rule 12.2(b) the court may, upon the government’s motion, order the defendant to be examined under procedures ordered by the court.

(2) Disclosing Results and Reports of Capital Sentencing Examination. The results and reports of any examination conducted solely under Rule 12.2(c)(1) after notice under Rule 12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition.

(3) Disclosing Results and Reports of the Defendant’s Expert Examination. After disclosure under Rule 12.2(c)(2) of the results and reports of the government’s examination, the defendant must disclose to the government the results and reports of any examination on mental condition conducted by the defendant’s expert about which the defendant intends to introduce expert evidence.

(4) Inadmissibility of a Defendant’s Statements. No statement made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on the statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant:

(A) has introduced evidence of incompetency or evidence requiring notice under Rule 12.2(a) or (b)(1), or

(B) has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2).

(d) Failure to Comply.

(1) Failure to Give Notice or to Submit to Examination. The court may exclude any expert evidence from the defendant on the issue of the defendant’s mental disease, mental defect, or any other mental condition bearing on the defendant’s guilt or the issue of punishment in a capital case if the defendant fails to:

(A) give notice under Rule 12.2(b); or

(B) submit to an examination when ordered under Rule 12.2(c).

(2) Failure to Disclose. The court may exclude any expert evidence for which the defendant has failed to comply with the disclosure requirement of Rule 12.2(c)(3).

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.

New York Affirmative Defenses

There are four general affirmative defenses under New York Penal Law Article 40 that apply to all criminal offenses:

New York Penal Law – Article 40 [ Other Defenses Involving Lack of Culpability

40.00 – Duress – The defendant was coerced to carry out the act by threatened or use or imminent use of force that a person “of reasonable firmness” could not resist. If the defendant put themselves in a position that may cause them to be subjected to duress, the defense is not available to them.

40.05 – Entrapment – The defendant was actively encouraged or induced to participate or engage in the criminal activity by an agent or public servant who was attempting to get evidence against them. The methods that the agent or public servant use must create a risk that is substantial enough that a person who would not under normal circumstances or who is not otherwise disposed to commit the crime would do so. 

40.10 – Renunciation – The defendant acted in a way that shows “voluntary and complete” renunciation, meaning that they withdrew from perpetrating or participating in the crime. Further, they made a “substantial effort” to stop the crime or prevent it from occurring. If the defendant decides to postpone the crime and intends to carry it out at a later time, or if they fear, in whole or in part, that they will be caught, they are not eligible to use the renunciation defense since both of these negate the voluntary and complete requirement.

40.15 – Mental disease or defect – The defendant, at the time that the crime was committed, lacked substantial capacity due to mental disease or defect, the capacity to appreciate or know the nature and consequences of their actions, or that what they were doing was wrong. When done successfully, this defense will trigger psychiatric exams that will determine the defendant’s mental state, if they have a mental illness, or if they are dangerously mentally ill according to CPL 330.20.

Other defenses may also be used that are specific to the offense. For instance, New York Penal Law – Article 125.25 [1][a] provides extreme emotional disturbance as a statutory defense for intentional murder in the second degree. New York Penal Law – Article 125.25 [3][c] provides “not having any reasonable ground to know a co-defendant was armed with a weapon” as a statutory defense for felony murder.

If you are facing criminal charges, whatever the circumstances that surround the crime, you have the constitutional right to a fair trial. You also have the right to have legal representation and Mr. Litvak of the Litvak Law Firm will fight to protect your rights and ensure that you have the best outcome possible in your case.

Call today at (718) 989-2908 for your free consultation and find out how Mr. Litvak and his team can help you protect your rights. Don’t wait, call today.