Affirmative defenses are strategies in situations where the defendant introduces evidence, which, if found to be credible, will negate or mitigate criminal liability. In essence the defendant admits that he committed a crime but some type of justification existed for it. Affirmative defenses include the following:
- Self-Defense – which embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm. Conduct which the defendant believes to be necessary to avoid a harm to oneself or to another is justifiable if the harm sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
- Mental Insanity – a defense of insanity acknowledges commission of the act by the defendant, while maintaining the absence of legal culpability. The test of legal insanity is not whether the defendant was mentally ill from a medical viewpoint, but whether the defendant knew what he was doing and knew that it was wrong.
- Voluntary Intoxication – based upon the ingestion of a drug or alcohol is a limited defense. The defendant has the burden to prove that he was overwhelmed through the use of drugs or alcohol to the extent that he could not formulate the specific intent to commit murder. It is only a defense to first degree murder which is murder with the specific intent to kill. It is not a defense to everyday crimes, such as retail theft.
- Entrapment – to prove entrapment the defendant has to show that the crime is one that he would not have committed, and he had no predisposition to commit, without the inducement of an undercover cop acting with him. The fact that the undercover cop tricked the defendant into assuming he would not get caught doesn’t make it entrapment.
- Defense of Others – similar to self-defense which embraces the concept that conduct which would otherwise constitute a crime can be excused when necessary to prevent a greater harm to others.
- Mistake of fact – can be a defense to a criminal charge when the conduct in question would have been lawful had the facts been what they were reasonably thought to be. However, mistake of age is not a defense when the criminal charge deals with photographing, videotaping, or depicting children. Ignorance of the law is no defense but ignorance or a mistake as to a fact which made the defendant act in a certain way is a defense if the mistake negates the intent, knowledge, belief, or negligence required to establish a material element of the offense. An example is if a defendant goes into a store and presents nine items to the cashier for payment. Both honestly believe that all nine items have been scanned, and the defendant pays the sum shown on the bill. However, the store detective reviews the bill and notices only eight of items were paid for. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the intent for the theft when he removes them from the store. Accordingly, he has not committed a crime due to a mistake of fact. The most common exception to the mistake a fact rule is mistake as to age. If criminal conduct depends on a child being under the age of 14 the defendant cannot assert that he did not know the age of the child as a defense. If, however, criminality depends on an age 14 years or older the defendant may assert that he reasonably believes the child to be above the required age. While the defendant may assert this defense the burden is on his attorney to prove it beyond a preponderance of the evidence.
- Consent – when asserting this defense the defendant does not dispute that a criminal act took place but rather he states that the conduct was permitted by the victim. Generally consent is a defense if the alleged victim gives competent, intelligent, and voluntary consent to the conduct charged. Consent is a defense because it negates the mental element of a crime. For example, if crime requires bodily injury or the threat of bodily injury consent as a defense provided that the conduct and the injury are reasonably foreseeable hazards from the activity. It is important to understand, however, that consent is not a defense if the person consenting is not legally competent because of their youth, mental illness, or intoxication to make a reasonable judgement. Consent is also invalid if it is given because of force, duress, or deception.
- Unavoidable Accident – the defendant while exercising reasonable care could not have avoided the accident because the victim put themselves in harms way.
- Coercion – occurs if the defendant is forced by another party to act in an involuntary manner by use of intimidation or threats or some other form of pressure.
- Execution of public duty – a defendant may use deadly physical force in execution of public duty only to protect against another’s use or apparent attempted or threatened use of deadly physical force. For example a security guard can shoot someone who is attacking someone else if he feels the person being attacked is in danger.
- Defense of property – the defense of property permits individuals to use a reasonable amount of force to protect their property. If an intruder enters your home you can defend yourself by using deadly force if you feel threatened and there is no duty to retreat inside your home. However, if you are outside your home there is a duty to retreat before using force to defend yourself if you can do so with complete safety. An example would be if you are driving in a bad neighborhood and are stopped at a red light and a man walks up to the car and pulls a knife and tells to get out of the car and he can drive away to escape you have a duty to drive away.
Always remember that a defendant is not required to admit to anything to assert an affirmative defense and should always maintains the right to remain silent. Your attorney can assert an affirmative defense using other witnesses, photographs, videos or documents. If you are charged with a crime and need representation, call Gregory J. Spadea at 610-521-0604 in Ridley Park, Pennsylvania.
