What is an Affirmative Defense?


June 11, 2006, 06:59 PM
OK law provides an affirmative defense in the case of unlawful entry to one's home in this law:C. Any occupant of a dwelling using physical force, including but not limited to deadly force, pursuant to the provisions of subsection B of this section, shall have an affirmative defense in any criminal prosecution for an offense arising from the reasonable use of such force and shall be immune from any civil liability for injuries or death resulting from the reasonable use of such force.
BUT in the OK law that deliniates the scenarios for justifiable homicide the phrase affirmative defense is not present.

What exactly is an affirmative defense? How does it protect one any different than a law that provides specific justifications for acts that would otherwise be illegal.

Inquiring minds want to know...

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June 11, 2006, 07:18 PM
I'm sure a lawyer will clarify better, but here's my understanding. Homicide is a crime. There are certain circumstances where the law recognizes that the citizen had no choice or very good reason to commit said homicide. All of these situations are "affirmative defenses" to homicide (murder, manslaughter) charges.

To specifically answer your question there is no difference between the affirmative defense outlined in your example and the other justifiable homicide situations that didn't have the phrase. The fact that they were mentioned makes them afirmative defenses also, the wording just wasn't included in those sections for whatever reason.

June 11, 2006, 07:59 PM
The difference is in which party bears the burden of proof. If you have only an affirmative defense, you must provide the evidence and satisfy whatever the burden of proof is to the jury.

If you satisfy the requirements of the defense, then even if you did whatever it is you're accused of, you won't be convicted.

June 11, 2006, 08:44 PM
In pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it. A response to a plaintiff's claim which attacks a plaintiff's legal right to bring an action, as opposed to attacking the truth of the claim.

...all affirmative defenses must be raised in the responsive pleading (answer);...

June 11, 2006, 08:56 PM
As said above, the important thing about an affirmative defense is that the burden to plead and prove it falls on the defendant.

Normally a defendant having the burden of proof is a bad thing, but the snippet seems to imply that if a person is involved in a "clean" shoot in his house, he can use that fact as an affirmative defense to any "piggyback" crimes that he may also be charged with.

So, for example, if D shoots someone in his house who was attacking him, and he's charged with discharging a firearm within city limits, he can use this as an affirmative defense to avoid criminal liability, even though he may have broken the law by firing within city limits.

Looks like a good law to me.

June 11, 2006, 09:18 PM
An affirmative defense also involves the admission of the base charge, in the case of a defensive shooting that you did in fact shoot the person.
You have admitted to a homicide.
You are then required to show that the act was within the law, e.g. that you had a reasonable fear for your life or grave bodily harm.
While it may seem odd, it places the burden on the defendent to show that the actions meet the allowed exceptions to a convictin for homicide.
You affirm you commited the act in question, but then point ot the mitigating circumstAnces that make it acceptable under the law.

June 11, 2006, 09:26 PM
You have to prove it to get the benefit of the defense.

The OK law seems to be a blanket shield for any harm you inflict upon anyone when using reasonable force in self defense. That means if you accidentally blow your nagging wife away while trying to kill a burglar who is attacking you, you will be shielded from the charge of manslaughter in addition to the charge of murder for the burglar. Not sure if you would be able to collect on her insurance policy or her estate though (I dont remember if the slayer rule thing requires a conviction or just some separate burden of proof in the civil trial).

Not a lawyer. Yet.

Jim March
June 11, 2006, 10:16 PM
My understanding of "affirmative defense" comes mainly from the California law that says that if you pack a handgun without a CCW permit, it is an affirmative defense to the illegal carry charge to note that you have a restraining order out against somebody else based on fear of their violence.

The bad news is that a jury can still convict if they want. The good news is that being an affirmative defense, the judge cannot prevent you from mentioning the restraining order - in other words he cannot himself label that "irrelevent" and prevent you from discussing the RO and the circumstances surrounding it. And then in jury instructions, the jury is told that they can set you completely free if they agree that the RO was part of a meaningful threat.

So in the Oklahoma situation, that's part of what "affirmative defense" means - the court can't screw you over by blocking your ability to mention that this was basic home defense or otherwise rig the game against you as so often happens. If the court does it anyway it's a major grade appeals issue and the law is so clear-cut on this the trial court judge might be risking review of his professionalism if he blows this.

Jim March
June 11, 2006, 10:25 PM
One more thing: jury instructions are a key part of a trial. Each side suggests jury instruction pieces and the judge rules which ones are used. A record is made of both final instructions and the suggestions from each side. The court also puts some standard ones in.

If a judge refuses to instruct properly based on an affirmative defense item, that is an appealable thing and one with a clear paper trail behind it.

June 11, 2006, 10:44 PM
This is an affirmative defense; if you can show that your use of force was reasonable and the shooting occurred within your home, it's not up to the jury. The judge will have to dismiss or give you a directed verdict in your favor.

If they're tried together, and the jury acquits on the homicide or attempted murder, or assault charge, or whatever; then they have to acquit on all other charges related to the shooting. If the jury doesn't want to acquit, the judge will do it anyway, or the appeals court will eventually.

But this statute doesn't refer to the shooting of the BG himself; that still has to be shown to be reasonable like any other self-defense shooting. Ok?

brickeyee: you don't necessarily have to admit to the action to use an affirmative defense. First of all, you're allowed inconsistent pleadings, e.g., "I wasn't there, but if I was, he consented..." or "I didn't agree to the deal, but if I did, it had to be in writing...", though, you're right -- you'd look pretty silly trying to argue that to a jury. But since the prosecution goes first, if they don't prove the charge, you sure don't have to use the affirmative defense, even if you kept the option open by pleading it.

June 12, 2006, 01:42 AM
I don't for a second believe that affirmative defense is for my benefit. We just got now got rid of this in Arizona. The innocent sounding words "affirmative defense" mean that you are assumed guilty until you prove you are innocent. Not a good system of law. If you committed a crime, let the state prove it.

Oh, I'm not a lawyer, either. And I don't even play one on TV.

June 12, 2006, 06:12 AM
The other thing to note about an "affirmative defense" is that you still get arrested. You're still dragged into the system .. and marked for life. It matters not that "the DA decided not to refer your case to a Grand Jury". Or you were "No-billed". You've been arrested. It is a permanent record.

"... And have you ever been arrested Mr______________?"

"Uh, yes .. but ... but ... "

It'll follow you around the rest of your life. And whatever little "innovations" they bring on for "all folks arrested" - regardless of conviction or not - you will be included in the category. Be it "in the national DNA database" or anything else the Plantation managers want ;)



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