[SIZE=1][B]UNDERSTANDING AFFIRMATIVE DEFENSES[/B]
David Beneman
Maine CJA Resource Counsel
Levenson, Vickerson & Beneman
P.O. Box 465
Portland, ME 04112
...
[B]I. Legal Groundwork For Affirmative Defenses
A. What is an Affirmative Defense?[/B]
An affirmative defense is one which provides a defense without negating an essential
element of the crime charge. To establish an affirmative defense the defendant [highlight]must place
before the jury sufficient proof[/highlight] to generate a jury instruction on the particular defense theory
sought. Normally, an affirmative defense is expressly designated as affirmative by statute,
or is a defense involving an excuse or justification peculiarly within the knowledge of the
accused.
[B]B. How is an Affirmative Defense different from a “Regular” Defense?[/B]
An affirmative defense is one which requires the actual production of evidence, be
it testimonial or physical. [highlight]The evidence can be adduced through cross examination of
Government witnesses[/highlight] or produced after the close of the Government’s case in chief.
Affirmative defenses do not directly attack an element of the crime but provide either
justification for the conduct or some other legally recognized approach to undermining the
charge. A defendant must generate an affirmative defense instruction.
[B]C. Types of Defenses[/B]
There are two categories of defense.
1. I did not do it defenses, and
2. I did it but defenses.
Affirmative defenses are available in both categories.
[...]
[INDENT][B]ii. I Did It But[/B]
Many more affirmative defenses fall into the “I did it but” category. Insanity,
entrapment, self defense, necessity, duress, are many of the statutory affirmative
defenses. In these situations, there is a major strategic aspect to deciding on the
defense. Assertion of the specific affirmative defense essentially concedes that the
defendant was involved in the conduct alleged. While the government must still
prove each element assertion of many affirmative defenses tells the jury the
government is in fact correct as too much of the charge, BUT, there is a fact or facts
which serve to exonerate the conduct. Self defense is an affirmative defense to
assault, but by asserting self defense the defendant admits to the assault then gives
a legal reason why guilt does not attach to the conduct. If the jury rejects the self
defense argument, they are supposed to still find proof BRD of all the elements.
Once you have put on your self defense claim, do you think a jury will spend much
time on deciding if assaultive conduct actually occurred? I don’t think so. In an I
did it but case, the defense is generally hanging the whole case on the jury accepting
the affirmative defense presented. Sure there are exceptions to every rule but
realistically how may jurors will accept arguments in the alternative. I did not assault
her, but if I did it was in self defense. I don’t think that works with a jury. Maybe
in a bench trial but even federal judges are human. In deciding to present an I did it
but affirmative defense review these issues with the client. I suggest you have a letter
explaining the issues to them.[/INDENT]
[B]Google Doc[/B]
[url]https://docs.google.com/viewer?a=v&q=cache:06-_HilumfEJ:www.fd.org/pdf_lib/beneman_affirmative_defenses_materials.pdf+affirmative+defense&hl=en&gl=us&pid=bl&srcid=ADGEESjQQ9DDIG6I9rtWnkdrvG4XMpf-h2KGVxjIf2cgCnXgnZ6rKrFrnVZwDO3Pw-YkvR4VQt6w8d4k7Jd6u3XiNVni3HwMVJaz2xJgZswMP-HkNfqJhwe5jZwla03YrbDJEf3LwZ9D&sig=AHIEtbQjGQcnos5_jKrclWonXfetxH8Zuw[/url]
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[url=www.fd.org/pdf_lib/beneman_affirmative_defenses_materials.pdf]UNDERSTANDING AFFIRMATIVE DEFENSES[/url][/SIZE]
