Affirmative Defenses: Playing Offense as a Defense Strategy
In football, there are offensive plays and defensive plays, and a good team understands that it’s succeeding in a combination of these two types of plays that helps them win the game.
In a criminal case, the State is usually on the offensive: Bringing the complaint, and carrying the burden of proof throughout the case. And the defendant and his or her attorney are usually on the defensive: Defending his or her constitutional rights, protecting his or her procedural rights, ensuring that police didn’t overstep the rules and that there is sufficient evidence being presented by the State for it to meet its hefty burden.
Sometimes, though, the defense gets to play offense. This happens when defense attorneys utilize Affirmative Defenses in criminal cases. Bringing an affirmative defense has the same effect as when the home team manages to get the ball just about all the way to the visitor’s goal line before they let the visiting team get the ball back, so the visitors have to go the whole length of the field all over again to try to score. Affirmative Defenses can set the State back substantially and sometimes, they can also act as a complete bar to an element of the State’s case, effectively stopping the State from proceeding.
There are approximately ten main affirmative defenses in Minnesota: Self-defense (includes defense of other), entrapment, mental illness or deficiency, duress, alibi, double jeopardy, statute of limitations, collateral estoppel, intoxication, and mistake of fact. Following is a brief description of each of these Affirmative Defenses.
1. Self-defense, and defense of other. True self defense or defense of another requires that an individual acted out of fear for his/her safety or the safety of another against the imminent use of unlawful force against him/herself or another. Factors that affect a claim of self defense are things such as the extent of the right to self defense in the situation, the force used, against whom it was used, and for what reason.
2. Entrapment. When someone is induced or persuaded by law enforcement officials to commit a crime that the person had no previous intent to commit, he or she has been entrapped.
3. Mental illness or deficiency. This defense asserts that at the time the acts constituting the offense were committed, the defendant was not capable of comprehending that what he or she was doing was a crime due to mental illness or deficiency.
4. Duress. If a defendant participated in a crime only because he orshe believed or had reason to believe that he or she would be seriously harmed if he of she did not participate, the defendant may be able to use the defense of duress.
5. Alibi. In Latin, alibi means “elsewhere.” The affirmative defense of alibi means that the defendant can prove he or she was somewhere else at the time of the crime and therefore could not have committed it.
6. Double jeopardy. The Fifth Amendment to the US Constitution protects us from being tried by the government for the same crime twice. This means that if the crime the defendant is currently facing is one that she or he has already faced and been either convicted or acquitted of, the government cannot bring a case against that person for that crime again.
7. Statute of limitations. Just like in civil cases, some criminal statutes involve time limitations, and if the State attempts to charge a defendant under a criminal statute after the statute of limitations has run on that particular act, this defense may be used.
8. Collateral Estoppel. In criminal cases, this term – which means “issue preclusion” – usually refers to a case in which the State has already prosecuted an individual for a particular crime and the individual was acquitted, at which time the federal government would not be able to later attempt to prosecute the individual for the same charge, or vise versa if the Federal government prosecuted first.
9. Intoxication. Involuntary intoxication, or involuntarily being under the influence of a drug or substance – can be an affirmative defense. Voluntary intoxication is only potentially a defense against the intent element of a crime; it can be used to prove an act was committed recklessly instead of with intent to cause serious harm.
10. Mistake of fact. This defense could be used like intoxication to negate the intent of the crime charged. To do this, the mistake must be made in honest good faith and it must be a reasonable mistake. For example, mistaking a young man who is actually 17 for a 21 year old. This is never a defense against strict liability crime (crimes that do not have an intent element). Mistake of law is another legal theory that sometimes is labeled an affirmative defense. Mistake of law is never a defense, unless the defendant can prove that he or she believed his or her actions were legal and based this belief on an official but erroneous interpretation of the law.
Whether an Affirmative Defense applies in your case or not is a decision that you and your attorney need to make together.