Affirmative Defense Explained: How It Works in Civil and Criminal Cases

An affirmative defense gives a defendant another way to fight a civil claim or criminal charge. Instead of simply denying the allegations, the defendant points to facts or legal circumstances that could prevent liability even if the underlying conduct occurred. Common examples include the statute of limitations, self-defense, assumption of risk, comparative or contributory negligence, fraud, and duress. Rules for using these defenses vary by case type and jurisdiction, and some must be raised early or risk being waived.

For legal help with an affirmative defense, speak with a qualified personal injury defense attorney who can review the facts of your case and explain which defenses may apply.

What Is an Affirmative Defense?

When someone responds to a civil lawsuit or criminal charges, they are the defendant. Either they or their attorneys will develop a legal defense.

One common defense strategy is to present an affirmative defense, in which the defendant will present additional facts and evidence that will overcome the plaintiff’s arguments for legal liability. The defendant essentially agrees that they committed the act they are being accused of. However, other circumstances shift liability away from them.

An affirmative defense is different from a denial. When a defendant denies claims, they say the alleged conduct didn’t happen, or they didn’t commit the acts. When using an affirmative defense, the defense doesn’t deny the conduct; they argue that they shouldn’t have legal liability.

However, an affirmative defense does not necessarily concede every allegation in a complaint or indictment. Depending on the arguments presented, the affirmative defense could be a complete defense or reduce/limit liability.

Affirmative Defenses in Civil Cases

When used during a civil lawsuit, affirmative defenses are typically used to limit personal liability for the plaintiff’s claims.

Affirmative defenses are typically used in personal injury claims, where someone seeks compensation for a loss caused by another party’s actions. Several affirmative defenses are commonly used:

Statute of Limitations

If the plaintiff waits too long to file their claim, the defendant may raise a statute of limitations defense. The defendant will argue that the deadline to file the lawsuit has already passed. As a result, the plaintiff is barred from seeking recovery.

The statute of limitations deadline varies by claim type and jurisdiction. Some are as short as months, while others are several years. Some exceptions can toll or extend deadlines. This can lead to disputes over the effectiveness of a statute of limitations affirmative defense.

Assumption of Risk

A defendant may agree that the incident or conduct took place. They may also argue that the plaintiff knew the risk involved. By participating in the conduct, the plaintiff knowingly and voluntarily encountered a particular risk.

Many jurisdictions separate assumption of the risk into two categories, express and implied. How the court categorizes assumption of the risk can change legal liability. Additionally, many states have combined assumption of the risk into their comparative/contributory negligence doctrines.

Contributory or Comparative Negligence

It’s common for more than one party to have contributed to the damages suffered in a personal injury claim. This includes the plaintiff making the claim. States address this by using either contributory or comparative negligence laws.

In a contributory negligence state, a plaintiff who is even 1% at fault is completely barred from recovery. In comparative negligence jurisdictions, a plaintiff can be partially at fault and may still recover. However, their recovery is reduced by their percentage of fault.

Comparative negligence laws vary by state. Some use a pure comparative negligence approach, where the plaintiff could be 99% at fault and still recover damages for the remaining 1%. Other states take a modified approach, in which the plaintiff can recover only if they are 50% or less at fault. If their fault percentage is over 50%, they are barred from recovery.

This type of affirmative defense is often paired with a claim of failure to mitigate damages. The defendant may accept that they are liable for the plaintiff’s injuries. However, they also claim that the plaintiff could have taken steps to limit their damages and failed to do so. Because of this, the defendant should pay only the actual damages caused, not the additional loss that resulted from the plaintiff’s failure to act.

Fraud

Fraud may serve as an affirmative defense when a defendant alleges that the other party’s fraudulent conduct affected the transaction or claim at issue.

The exact requirements vary by jurisdiction and by the type of claim involved, so an allegation of fraud does not automatically qualify as an affirmative defense in every case.

Duress

Duress may provide an affirmative defense when a defendant argues that coercion or unlawful threats left them with no meaningful choice but to take the action at issue.

Specific requirements vary by jurisdiction, and the pressure generally must go beyond ordinary business pressure or difficult circumstances.

Other Civil Affirmative Defenses

Affirmative defenses tend to be fact-specific. Several additional affirmative defenses may be available to a defendant. Other affirmative defenses can address the plaintiff’s conduct, prior agreements, or the dispute’s history:

• Waiver may apply when a party intentionally gives up a known right
• Collateral estoppel can prevent a party from relitigating an issue that was already decided in an earlier case
• Accord and satisfaction may resolve a disputed obligation through an agreement and performance
• Res judicata can bar a claim that has already been finally resolved
• Laches may apply when a party’s unreasonable delay in asserting a right unfairly prejudices the opposing party

Other potential defenses include release, payment, illegality, and related legal doctrines. Federal Rule of Civil Procedure 8(c) provides a useful framework for many affirmative defenses, although state rules may differ.

Affirmative Defenses in Criminal Cases

Criminal affirmative defenses tend to work differently than civil defenses. The prosecution generally must prove every element of the charged offense beyond a reasonable doubt.

An affirmative defense, however, gives the defendant a legal basis for avoiding criminal responsibility based on additional facts or circumstances. Who bears the burden of proving that defense, and what standard applies, depends on the particular defense and the jurisdiction’s criminal law.

Self-Defense

A self-defense claim is typically used in cases that involve physical contact, such as assault or battery. The defendant argues that their use of physical force was legally justified under the circumstances.

Each state has laws that define when and how someone can claim self-defense. Generally, these laws focus on whether the defendant acted reasonably in response to an imminent threat of unlawful force. Many also analyze whether the defendant’s actions were necessary and proportionate to the threat.

In many states, the defendant claiming self-defense cannot be the one who started the confrontation. State laws also differ on whether a person must retreat before using deadly force when they can safely do so.

Duress

Duress may provide a defense when a defendant claims they committed a crime because another person used serious threats or coercion to force them to act.

The basic argument is that the defendant faced circumstances so threatening that they had no reasonable choice but to commit the crime. Duress requirements vary by jurisdiction and offense.

Some laws focus on the immediacy and seriousness of the threat, while others impose additional requirements concerning the defendant’s ability to escape or seek help.

Other Criminal Affirmative Defenses

Depending on the jurisdiction and circumstances, a defendant may also raise one of the following:

• Insanity defense: Arguing that a qualifying mental condition prevented them from meeting the legal requirements for criminal responsibility.
• Entrapment: May apply when law enforcement improperly induces someone to commit a crime they were not otherwise predisposed to commit.
• Necessity: Can arise when a defendant argues that committing the offense was necessary to avoid a greater harm.
• Consent: May also serve as a defense in limited circumstances when the law recognizes consent as relevant to the particular offense.

Other justification and excuse defenses may be available depending on the crime charged and the applicable law.

Who Has the Burden of Proof for an Affirmative Defense?

In general, the party asserting an affirmative defense typically bears the burden of proof. However, the burden does not operate the same way for every affirmative defense or in every jurisdiction.

Two separate burdens matter:

1. The burden of production is the requirement of presenting enough evidence to put the defense at issue
2. The burden of persuasion is convincing the court that the defense applies

There are two common standards that courts use when evaluating an affirmative defense argument:

1. Preponderance of the evidence means the evidence shows that something is more likely true than not true.
2. Clear and convincing evidence means the evidence shows that something is highly probable and leaves the fact finder with a firm belief that it is true.

The standard varies by jurisdiction, and some jurisdictions use a different standard than these two. Shifting the burden regarding an affirmative defense does not generally relieve the prosecution of proving the elements of the charged offense beyond a reasonable doubt.

When Must a Defendant Raise an Affirmative Defense

Defendants must follow the applicable procedural rules when raising an affirmative defense. Affirmative defenses generally need to be raised in the defendant’s answer during a civil lawsuit.

Some can be raised during a responsive pleading if appropriate. However, timing requirements can vary by jurisdiction and by the type of affirmative defense raised.

What Happens If a Defendant Does Not Raise One?

Failing to raise an affirmative defense on time can create a serious problem. In civil cases, a defendant who leaves an applicable defense out of the answer may risk waiver. The court may prevent the defendant from relying on that defense later.

Waiver is not necessarily automatic in every case. Depending on the circumstances, a court may allow a defendant to add an omitted defense through an amended pleading or otherwise raise it later.

Criminal Cases Are Different

Criminal defendants do not follow the same pleading requirements as defendants in civil lawsuits. Federal Rule of Civil Procedure 8(c) does not govern criminal cases. A criminal defendant does not generally respond to criminal charges by filing an answer that lists affirmative defenses in the same way a civil defendant responds to a complaint.

In criminal court, how and when a defendant raises affirmative defenses depends on several factors. Some defenses must be raised by a pretrial motion or notice to the prosecution. Other affirmative defenses must be raised by presenting evidence during the trial phase.

Can a Defendant Raise More Than One Affirmative Defense?

A defendant can raise multiple affirmative defenses, as long as they meet the requirements for each claim.

Sometimes, the affirmative defenses raised can conflict with each other or with other defenses. For example, a defendant can simultaneously claim, “I did not commit the act,” and “If the court finds that I did, self-defense applies.”

What Happens After an Affirmative Defense Is Raised?

Raising an affirmative defense is only the beginning. What happens next depends on whether you’re dealing with a civil lawsuit or a criminal case, the defense being asserted, and the rules in the applicable jurisdiction.

Civil Case

1. Defendant raises the defense in the answer
2. Plaintiff may challenge the defense
3. Parties conduct discovery regarding facts supporting or defeating the defense
4. The court may address the defense through motions
5. If the issue remains disputed, the defense may go to the judge or jury at trial
6. Defendant must satisfy whatever burden applies to the particular defense

Criminal Case

1. Defense is raised according to applicable criminal procedure
2. Defendant presents evidence sufficient to place the defense at issue, where required
3. The court determines the applicable burden and jury instructions
4. Prosecution still must prove the charged offense under the applicable constitutional standard
5. The jury or judge determines whether the defense has been established

Why Affirmative Defenses Can Change the Outcome of a Case

An affirmative defense can change the question a court has to answer. Instead of focusing only on whether the defendant committed the alleged conduct, the case may turn on whether the defendant has a legal reason to avoid responsibility.

A successful affirmative defense in a civil claim can change the entire direction of the case. It could prevent the plaintiff from recovering any damages. In other cases, it can reduce the total amount the plaintiff can recover. In a criminal case, a successful affirmative defense can result in acquittal or avoid criminal liability.

Seek Legal Advice

An affirmative defense can make a significant difference in a civil or criminal case, but you can’t simply mention a defense and expect it to carry the day. Having an attorney involved early can help you avoid procedural mistakes while building the strongest defense available under the law.

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