Also known as: affirmative defense · affirmative defences · affirmative defence
Written by attorneys · grounded in primary & secondary sources — see below
A set of facts or circumstances that, if proved by the defendant, prevents conviction or liability even if the plaintiff or prosecution has established a prima facie case. The defendant must specifically plead the defense and ordinarily bears the burden of production or persuasion on it.
Austin Abbott enters an empty warehouse at night intending to remove copper wiring. The structure has stood vacant for years with no utilities or security. At trial Abbott introduces evidence of the long-term vacancy. The affirmative defense succeeds because the building was abandoned.
Abigail Alvarez, a lineman employed by a contractor, is injured while working on lines owned by Blue Ridge Rural Electrical Cooperative. The cooperative asserts that Alvarez counts as its statutory employee under state compensation law. The court treats the statutory-employee status as an affirmative defense that the cooperative must prove.
Select any source to read its text and confirm it supports the definition.
Adam Anderson is convicted of a weapons offense. The state seeks an enhanced sentence based on a factual finding that the offense was motivated by bias. The court holds that the bias finding is an element the prosecution must prove beyond a reasonable doubt rather than an affirmative defense the defendant must disprove.
Alan Ackerman files a class action in federal court under a state statute that limits certain defenses. Allstate moves to strike the complaint for failure to satisfy state pleading requirements. The Supreme Court holds that federal pleading rules govern and the state limitation does not convert the matter into an affirmative defense that must be pleaded specially.
Albert Allen is convicted of murder after presenting evidence of extreme emotional disturbance. On appeal he argues the evidence was insufficient to support the jury's rejection of the defense. The court reviews whether any rational trier of fact could have found the defense disproved beyond a reasonable doubt.
Antonio Alvarado seeks to certify a nationwide class of employees alleging pay discrimination. Wal-Mart contends that individualized affirmative defenses such as differing reasons for each pay decision predominate. The Supreme Court holds that the need to litigate those defenses separately defeats commonality.
Yes. Procedural rules require that affirmative defenses be specifically pleaded or they are waived.
Supporting sources
The defendant ordinarily bears both the burden of production and the burden of persuasion. Model Penal Code provisions and due-process cases confirm that once the prosecution proves the elements of the offense, the defendant must establish the defense by a preponderance unless the statute assigns a different standard.
Supporting sources
A failure-of-proof defense negates an element the prosecution must prove beyond a reasonable doubt. An affirmative defense concedes the elements but offers an excuse or justification that the defendant must prove. The distinction controls both pleading requirements and the allocation of burdens.
…to the argument that our view could be seen "to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes," the Court made clear in the very next breath that there were "obviously constitutional limits beyond which the States…