Face Lesser Penalties With 3 Common Affirmative Defenses

The defendant in a criminal case is the person accused of committing a crime. A defendant in the United States has the benefit of the presumption of innocence. This places the burden upon the prosecutor to prove the defendant’s guilt beyond a reasonable doubt. The accused does not have offer any evidence in opposition or offer a defense to the criminal charges.

A defense in a criminal case can go beyond a simple denial of the charges and can require the defendant to present evidence to prove the defense. Because these defenses place a burden on the defendant to do more than rely upon the prosecutor proving guilt beyond a reasonable doubt, they are known as affirmative defenses. Common affirmative defenses include:

  • Intoxication
  • Self-defense
  • Insanity


Intoxication Defense

Voluntary intoxication is usually not a defense to a criminal charge. Some states allow a defendant to prove that voluntary intoxication made it impossible to form the intent or premeditation required under a state’s criminal statute. Most jurisdictions view intoxication as a voluntary act that cannot relieve a person of responsibility for committing a criminal act.



Self-defense is usually claimed by someone charged with a violent crime. The defense acknowledges that the act occurred, but the defendant claims to have responded to an immediate threat of physical harm with an amount of force appropriate to avoid the harm. For example, a person confronted by an attacker displaying a gun might be justified in shooting the attacker. If the attacker has second thoughts, puts away the gun and begins to walk away, the victim would not be justified in using deadly physical force because the threat of physical harm is no longer immediate.

The second element of self-defense pertaining to the amount of force used to respond to the attack can create problems for a defendant. A person confronted on a street by an unarmed individual who demands money might not be justified in using deadly physical force. Under such circumstances, deadly force could be viewed as an excessive response.


The Insanity Defense

No defense has more controversy surrounding it than the insanity defense. The defense is based on the idea that a person who cannot control behavior or understand that a particular act is wrong should not be punished for committing a criminal act. For example, a person suffering from a mental disorder shoots and kills a person who the defendant perceived as being a beast-like monster could be found not guilty by reason of insanity.

Some states have eliminated the insanity defense completed, while others have changed their laws to limit the defense by finding the person guilty but insane. A verdict of guilty but insane means that the defendant is sentenced in the same manner as other defendants, but the sentence includes provisions for treatment of the mental disorder.

For more information or examples of affirmative defenses, pick up the phone and ask Houston lawyer Rand Mintzer at 713-862-8880.