Affirmative defense 219292 219608097 2008-06-16T01:45:42Z Captain-tucker 6684307 remove unreferenced {{CrimLaw}} An '''affirmative defense''' is a category of [[defense (legal)|defense]] used in [[litigation]] between private parties in [[common law]] [[jurisdictions]], or, more familiarly, a type of defense raised in [[criminal law]] by the [[defendant]]. Affirmative defense can be classified as either a justification defense or an excuse defense.<ref>{{cite book|last=Brody|first=David C.|coauthors=James R. Acker, Wayne A. Logan|title=Criminal law|publisher=Aspen|date=2001|pages=p241|isbn=0834210835|url=http://books.google.com/books?id=2ipUSeStAzQC&pg=PA241&dq=%22affirmative+defense%22&lr=lang_en&num=50&as_brr=3&ei=aXRVSNK5E4e4jgGh_oWODA&sig=C_NCpe6vs6T4RYmssjbIJkXb-ec#PPA241,M1}}</ref> A defendant affirms a criminal act is justified under certain circumstances that are presented, i.e. self defense, defense of others, defense of home/property. A defendant affirms a criminal act is excused due to a mental disease or defect at the time of the crime. Affirmative defenses operate to limit, excuse or avoid a [[defendant]]'s criminal [[culpability]] or civil [[liability]], even though the factual allegations of [[plaintiff]]'s [[cause of action|claim]] are admitted or proven. A clear illustration of an affirmative defense is [[self-defense]].<ref>{{cite book|last=Neubauer|first=David W. |title=America's Courts and the Criminal Justice System|publisher=Wadsworth|date=2005|pages=p320|isbn=0534628923|url=http://books.google.com/books?id=HO6aELtLWgAC&pg=PA320&dq=%22affirmative+defense%22&lr=lang_en&num=50&as_brr=3&ei=aXRVSNK5E4e4jgGh_oWODA&sig=Kq_SiBX1d1ZCFN_9oDnigcKzOUI#PPA321,M1}}</ref> In its simplest form, a criminal defendant may be exonerated, if he can demonstrate that he had an ''honest'' and ''reasonable'' belief that his conduct was necessary to protect himself or a third person against another's use of unlawful force. Mistake of fact is another affirmative defense, usually used in combination with another, in which the defendant asserts that he reasonably believed the culpable act was necessary based on his observation, though given complete knowledge of the situation it is clear that the act was unwarranted. A person who assaults another person in defense of a third person that the victim had been attacking would be justified even if the victim and the third person were actors or performers, if the defendant could not reasonably have known this fact by observation. Among the most controversial affirmative defenses is the [[insanity defense]],<ref>{{cite book|last=Neubauer|first=David W. |title=America's Courts and the Criminal Justice System|publisher=Wadsworth|date=2005|pages=p321|isbn=0534628923|url=http://books.google.com/books?id=HO6aELtLWgAC&pg=PA321&vq=insanity+defense&dq=%22affirmative+defense%22&lr=lang_en&num=50&as_brr=3&source=gbs_search_s&sig=mj6c90C5VM_c6Dy_3qZDzkEYUVQ}}</ref> whereby a criminal defendant, shown to be insane at the time of their crime, seeks commitment to a mental institution in lieu of imprisonment. An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it. What constitutes timely assertion is often itself the subject of contentious litigation. Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the [[burden of proof]].<ref>{{cite book|last=Oran|first=Daniel |coauthors=Mark Tosti|title=Oran's Dictionary of the Law|publisher=Delmar|date=2000|pages=p20|isbn=0766817423|url=http://books.google.com/books?id=7rNvFzupHP8C&pg=PA20&dq=%22affirmative+defense%22&lr=lang_en&num=50&as_brr=3&ei=aXRVSNK5E4e4jgGh_oWODA&sig=zcah-lUSl8SzPlPlTUFJyPF8Lp4}}</ref> The burden of proof is typically lower than [[burden of proof|beyond a reasonable doubt]]. It can either be proof by [[clear and convincing]] evidence or a [[preponderance of the evidence]]. In some cases or jurisdictions, however, the defense must only be asserted, and the prosecution has the burden of proving beyond a reasonable doubt that the defense is not applicable. Rule 8 of the [[Federal Rules of Civil Procedure]] governs the assertion of affirmative defenses in civil cases filed in the [[United States district court]]s. Rule 8(c) specifically enumerates the following defenses: "[[accord and satisfaction]], [[arbitration]] and award, [[assumption of risk]], [[contributory negligence]], [[discharge in bankruptcy]], [[duress]], [[estoppel]], failure of [[consideration]], [[fraud]], [[Illegal agreement|illegality]], injury by fellow servant, [[laches]], [[license]], [[payment]], [[Legal release|release]], [[res judicata]], [[statute of frauds]], [[statute of limitations]], [[waiver]], and any other matter constituting an avoidance or affirmative defense." ==Examples== * [[civil law (common law)#As opposed to criminal law|civil law]] ** [[assumption of risk]] (when the plaintiff knowingly entered into a dangerous situation) ** [[authority]] ** [[consent]] ** [[defense of property]] ** [[duress]] ** [[estoppel]] ** [[contract-specification defense]] ** [[contract|contractual]] provision (when the defendant's liability for causing the plaintiff's injuries had been waived in the contract) ** [[contributory negligence]] (when the plaintiff's actions contributed to his own injury) ** [[Fair_use#Fair_use_as_a_defense|fair use]] ** [[laches_(equity)|laches]] (similar to statute of limitations) ** [[merger doctrine (copyright law)|merger doctrine]] ** [[repossession]] ** [[statute of frauds]] ** [[statute of limitations]] (too much time has elapsed between the tort and the bringing of the suit) ** [[waiver]] * [[criminal law]] ** [[insanity defense]] ** [[necessity]] ** [[Self-defense (theory)|self-defense]] ** [[statute of limitations]] ==See also== * [[Reverse onus]] ==Notes== {{Reflist}}<references/> [[Category:Civil law]] [[Category:Criminal defenses]]