Affirmative Defense

Question: Affirmative defense? What is meant by the phrase "affirmative defense"?

Answer: There are two types of defenses. A defense and an affirmative defense affirmative defenses state that everything that the other side says is true but for some reason, the defendant is excused as a matter of law. Examples would be: I was speeding but it was an emergency I killed him but it was in self-defense I was double parked but was making a delivery I didn't pay child support, but I was homeless I punched him, but I suffer from a mental disorder that prevents me from telling right from wrong. Yes it's all true but it happened too long ago. With a defense, the burden of proof lies with the prosecution or plaintiff. An affirmative defense shifts the burden of proof over to the other party. Essentially the claims are "affirmed" as true, and new facts must be proved to show an excuse or that the claims are not the entire truth of the matter.

Question: When must an affirmative defense be proven in court? When must an affirmative defense be proven in court? During the trial, pre-trial, or post trial?

Answer: It must be set forth in the answer to the complaint (pre-trial) and proven at trial.

Question: If a person saw a threatening dog on his property and shot him, does he have an affirmative defense in court? my friend recently woke up in the middle of the night because he heard someone go over/through his fence and into his backyard so he took his rifle with him. However, when he took a second look, it was a pit bull and when the pit bull saw him, the pit bull started to charge at him threateningly so my friend panicked and shot the pit bull. So now the pit bull's owners are suing my friend, does my friend have an affirmative defense?

Answer: Since we are asking the question I have to believe you know what the elements of affirmative defense are and in this case my answer would be yes. Not denying the actions he took but reacted to a threat while the owner of the pit bull was the culpable party in the first place. When he develops his answer to the court prior to appearing affirmative defense should be asserted beforehand as in many jurisdictions if not it is assumed to be waived. As a footnote, I'd shoot the dog too.

Question: Why only insanity as an affirmative defense under 18 USC? Under 18 USC, only insanity is an affirmative defense. In state criminal codes, there are other affirmative defenses, including "general justification", "justifiable force" and "self defense". Why do these additional affirmative defenses not exist in 18 USC as well?

Answer: A layman's opinion. Especially with jury trials, insanity pleas are a very special case. The whole subject challenges what we may consider to be explained as common sense. I think Shannon vs. U.S. exhibits some of the problems. As a $17 per day juror in my county, I would be confident in deciding legal vs. illegal but I would want specific law for an insanity case.

Question: How you would overcome an affirmative defense of consent during an acquaintance rape investigation?

Answer: This is not quite a physics question. You'd better try another section like Law & Ethics. http://answers.yahoo.com/dir/;_ylt=AuK_9…

Question: Affirmative Defenses: I'm looking for simple explanations for each defense? I'm hoping to find an explanation for each defense. I am having trouble with the law terminology. or a website that lists explanations. thank you

Answer: An affirmative defense is a category of 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. Affirmative defenses operate to limit, excuse or avoid a defendant's criminal culpability or civil liability, even though the factual allegations of plaintiff's claim are admitted or proven. In fact, the defendant usually must affirm that the facts asserted by the plaintiff are correct in asserting their own defense, hence, "affirmative" defense. A clear illustration of an affirmative defense is self-defense. 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 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. Self defense is still valid even if the defendant mistakenly believed he was in imminent danger of harmful or offensive bodily contact. Among the most controversial affirmative defenses is the insanity defense, whereby a criminal defendant, shown to be insane at the time of their crime, seeks commitment to a mental institution in lieu of imprisonment. Most affirmative defense must be timely plead by a defendant in order for the court to consider them, or else they are considered waived by the defendant's failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction. 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.[4] The burden of proof is typically lower than 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 courts. 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, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense." [edit]Examples civil law Accord and satisfaction assumption of risk (when the plaintiff knowingly entered into a dangerous situation) authority consent defense of property duress estoppel contract-specification defense 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 laches (similar to statute of limitations) 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 statute of limitations Truth

Question: If an affirmative defense is raised in an answer but not a subsequent opposition motion, is it waived? In federal courts?

Answer: If it's raised in the answer, the plaintiff is on notice and there is no reason to waive.

Question: What is the courtcase that set the precedent for Affirmative Defense?

Answer: Don't hire Mr Laughter for your attorney... (hehehe) Directly from the Law Library: "An assertion in the defendant's answer to a complaint that the plaintiff's suit is barred, even assuming the alleged injury or loss, on certain legal grounds. These grounds include the defendant's duress or necessity, the plaintiff's assumption of risk, the plaintiff's contributory negligence, the expiration of a statute of limitations, or other legal justification of the defendant's conduct. Affirmative defenses must be separately identified and asserted in the defendant's answer". This aspect of law has evolved, over many court cases, as legislation, as opposed to case law.

Question: Is the statute of limitations always used as an affirmative defense in an answer to a complaint?

Answer: Yes, it is a affirmative defense that must be properly raised in the answer to a complaint.

Question: Is "justification" an affirmative defense in federal courts? Rule 8 (c) doesn't list it but I understand that it is not an exhaustive list.

Answer: you could try it, but that doesn't mean anybody is gonna care one way or another, depending on the specifics of the case, which you conveniently didn't tell us one bit about.

Question: Is the insanity plea an affirmative defense?

Answer: No, self defense would be an affirmative defense

Question: How would you over come an affirmative defense of consent during an acquaintance rape invistigation .?

Answer: Well an affirmative defense doesn't have to be overcome it has to be proved. If someone is being charged with rape and a person pleads the affirmative defense of consent they will have to prove it. The burden would be on them.

Question: If Washington state law provides an affirmative defense for A crime(late) can local rules disreguard? Affirmative defense:"uncontrolable circumstances prevented the person from appearing and that the person did not contribute to such circumstances in recless disreguard of the law,and did appear as soon as such circumstances ceased to exist".Pierce county local court rules limit this two three reasons1.person was incarcerated.2.emergency medical ,this must be actual 911 or emergency room documation,it must be timed and dated at your exact court time not one hour before or after,no other medical conditions are acceptable.except #3If you can prove by actual police report you were in the act of being sexualy assalted (again not an hour before or after,but at that exact time)then you may use the affermative defence.If you have any other reason, however legitmate it may be,the defence is not permitted to use it or allow the jury to hear it,if in testimony you do bring it up.You will be charged with contempt of court,atty. will also be looking at A suspension.Is this legal?CONSTITUTIONAL?

Answer: Ask a lawyer licensed to practice in Washington state. And never trust anything you hear in a forum like this to be true when it might have significant consequences for you.

Question: Defense and affirmative do they go together and what do they mean,? Affirmative defense number one what is affirmative? defense?

Answer: Do you know the meaning of D-I-C-T-I-O-N-A-R-Y?

Question: Law, False Imprisonment, Affirmative defense? Taking a paralegal program and I need to come up with some Affirmative Defenses for this case. The plaintiff accuses the defendants for false imprisonment in his own hotel suite. I'm not sure to say probable cause or if i can deny this accusation. There is a convention going on at this hotel and people can either buy or sell things like old baseball cards, sports paraphernalia, etc. Plaintiff was innocently sitting in his suite as buyers come and go and then the defendants barge in screaming, "I want any sports items that belong to XX, returned back to me." The plaintiff tried to reach for the door so him and the buyers could leave, however, the defendants shoved him against the wall and injuring him. The plaintiff then called his Tiger in to watch them so that they do not try to escape again. The defendant again threatened that no one would leave until 'he' got his 'stuff' back and when he decided that they could leave. The defendant accused the plaintiff for being a 'thief' and that he demanded his stuff back. My affirmative defense for another cause of action for Battery, I chose Defense of Property, since the defendant claims that the Plaintiff has some of his property. Hope this is right. Affirmative defense for Intentional Infliciton of Emotional Distress I chose Comparative Negligence because instead of trying to prove that the 'stuff' belongs to him and not the defendant, he chose to run. But still unsure. And for Defamation? Not sure if Opinion? Like other sports dealers, Plaintiff reserved a suit so he could sell his items from the living room area, his German Sheppard dog is in the bedroom tied up. Buyers come and go the hotel suite and then 2 men burst thur partially closed door with gun yelling demanding for Defendants items that was claimed stolen from Defendants house in Costa Mesa. The intruders demand their stuff while Tiger being on a leash and carrying a pet monkey. Plaintiff vehemently said that he had purchased the stuff legally and rightfully his. Plaintiff felt threatened and headed for the door, however, Defendants violently pushed him against the wall, slam the door shut, Plaintiff's head is bleeding. Then the dog came in and lunged at defendants and Tiger teared the dog to pieces. Defendant called Plaintiff a thief and taking things at the same time. Plaintiff got traumatized by the sight of his dog getting killed, and the monkey biting his ear and cheek. He now suffers anxiety and is claustraphobic, lost wgth

Answer: No, this defense would not work. If someone is actively taking your property, you can use force to keep it. If you barge into someone's hotel room and hold them there demanding your (alleged) property back you have broken the law. Calling the police, or suing in civil court would both be better options.

Question: What does it mean to recieve a Reply to Affirmative Defenses from my housing lender? I'm dealing with foreclosure and hired a lawyer but today I recieved "Reply to Affirmative Defenses" and freaking out as to the meaning of it. Can anyone help me?

Answer: This is just the Plaintiff's way of saying he does not agree that your affirmative defenses are issues that should be tried.

Question: How can a 440 motion be effective against trial attorney who used the wrong defense? The charge was felony murder. The trial attorney opted to go with involuntary confessions and not the affirmative defense. Are defense attorneys legally obligated to go with the best possible defense?

Answer: They are legally and ethically obligated to use the defense that THEY believe is the best, or to act on the orders of their client. If the client asked for a certain defense strategy and the lawyer did not agree, his option would be to withdraw, since to use a defense that he felt was inappropriate, he would be violating his ethical standards.

Question: What is affirmative defense?

Answer: It's a defense that must be proved by the defendant to the appropriate standard of proof. For instance, in most states truth is an affirmative defense to defamation, meaning that in order to successfully defend a defamation suit based on the truth of the statements, the defendant must prove that the statements were true.

Question: Is an alibi an affirmative defense?

Answer: Not really -- it directly defeats one element of the crime -- the presence of the defendant. But it functions as an affirmative defense for procedural purposes -- meaning the defense needs to give notice to the prosecution that it will be offering alibi evidence, and most such evidence is presented by the defense after the prosecution has rested.

Question: What does "It is a defense to prosecution" mean? When a statute states "It is a defense to prosecution..." what does that mean legally? Can a cop arrest you for a charge even if you meet the requirements for a valid defense? Take for instance the clause that in Texas It is an affirmative defense to prosecution under this section that the actor was not more than three years older than the victim and of the opposite sex. If a person meets this clause (along with the other clauses after that) can he/she still be arrested?

Answer: You seem to be asking if the trial (in which the facts are adduced) must come before the arrest. The answer is no. A cop is not required to believe the claim regarding the ages of sexual partners and can make a lawful arrest based on probable cause, with the full proof coming later.