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What is an Affirmative Defense?

By David Hammond

If you have been charged with a crime, now is not the time to resign yourself to fines and imprisonment. Taking action and hiring an experienced attorney to mount a solid defense in your favor can still turn the whole thing around. What type of defense can successfully clear you of the charges you face? Well, there are a number of different defense options that will vary in applicability depending on the facts and circumstances of your case. In some cases, an affirmative defense may be asserted to clear you of criminal liability for your actions.

What is an Affirmative Defense?

When successfully asserted, an affirmative defense will excuse a defendant from criminal liability, in whole or at least in part. It basically is a “yes, but…” defense. Yes, the defendant engaged in behavior that may be considered criminal in other contexts, but in this case extenuating circumstances present mean that no criminal liability should attach. The defendant must affirmatively raise this kind of defense and has the burden of proof in the matter. If successful in meeting this burden, an affirmative defense will prevent conviction of the defendant even if the prosecutor has met their burden of proving the defendant is guilty of the criminal charge beyond a reasonable doubt.

This is the basic explanation of what an affirmative defense entails, but it can still feel complicated to understand. As such, presenting examples of affirmative defenses can help clarify these otherwise murky waters. Take, for example, the affirmative defense of duress The duress affirmative defense states that the defendant did engage in the criminal behavior, but only did so under duress. Duress is the threat of serious bodily harm or death that is strong enough to induce a person to commit a crime.

Entrapment is another example of an affirmative defense. With entrapment, the defense is asserting that the defendant would not have committed the crime but for the inducement of a government agent. The government agent is oftentimes an undercover law enforcement officer.

One more example of an affirmative defense is necessity. With the necessity defense, the defense is asserting that the defendant reasonably believed that there was an imminent threat of harm to themselves or others and that the only way to avoid this imminent threat was to break the law. In order to successfully assert this defense, it also needs to be proven that the harm resulting from the violation of the law was less severe than the harm that the defendant sought to avoid in the first place.

Criminal Defense Attorneys

Are you facing criminal charges? Do not accept defeat before things have even begun. Reach out to the experienced criminal defense team at CDH Law. We will immediately begin working on your case and exploring all viable defense options to help exonerate you from all charges. Contact us today.

About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.