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Affirmative Defenses


A defendant’s interaction with the criminal court is less like a coin flip and more like a flow chart.  Deciding whether to plead innocent or guilty is not a simple “yes” or “no” question, even though it would seem that way if the only part of the proceeding that you saw was the part where the defendant stated the plea.  Furthermore, in cases that go to trial, matters are more complicated than simply the prosecution trying to prove that the defendant committed a particular illegal act and the defendant trying to prove that he or she did not.  At trial, defendants must only show that there is reasonable doubt about their guilt.  If the jurors’ response is, “I don’t know,” then the verdict is “not guilty.”  Not being guilty of a crime is about more than simply not removing a coveted item from the premises or not throwing a punch.  The same action can be legal or illegal in different circumstances.  Demonstrating that you didn’t do it, or at least that you might not have done it, is only one way to get acquitted.  You can also argue that certain aspects of the prosecution’s case against you are invalid because the state was only able to make its case by violating your legal rights.  You can also use affirmative defenses, where you admit that you committed the action that the prosecution says you committed, but that it does not fit the definition of the crime because of a mitigating circumstance.  Here, our Miami criminal defense lawyer explains some common affirmative defenses and the circumstances where it might be appropriate to use them.

It’s Only a Crime When You Don’t Have the Other Person’s Consent

The definitions of many crimes contain the phrase “without the victim’s consent” or some variation thereof.  For example, almost any sexual act becomes a crime when one party engages in it without the consent of the other party, but if you can provide compelling evidence that the act was consensual, the criminal charges do not apply.  Likewise, theft occurs when you take and keep someone else’s property without the original owner’s consent, but if you have the original owner’s consent to possess the property, your actions no longer count as theft.  The consent defense can even work in certain drug possession cases.  It is illegal to carry Adderall in your backpack unless you have a valid prescription for it; if you can show that you only possess the drug by the consent of a doctor and pharmacist, you are no longer guilty of illegal possession of controlled substances.

Coercion and Duress

You can be acquitted of a crime if you can provide sufficient evidence that you committed the act under duress, which means that someone coerced you into doing it.  An example of duress is if a drug dealer asks you to transport a stash of drugs.  When you refuse, he tells you that, if you do not, he will have one of his associates tell the police that you have been buying illegal drugs for your own personal use.  Duress must involve a credible threat of physical violence or legal action; peer pressure alone does not constitute duress.

Lack of Criminal Intent Due to an Impaired Mental State

Some types of affirmative defenses involve arguing that you are not guilty because, at the time you committed the act, your mental state was such that you did not understand that what you were doing was a crime.  The insanity defense means that the defendant was unable to comprehend the criminality of the action because of a mental illness or intellectual disability.  If you use the insanity defense and the jury finds you not guilty by reason of insanity, the court has the right to order you to undergo inpatient psychiatric treatment; in other words, even when the insanity defense is successful, it does not get you out of being institutionalized.

Involuntary intoxication is another affirmative defense.  In this defense, you claim that you did not understand what you were doing because of drug intoxication and that you did not intentionally consume the intoxicating drugs.  For this defense to work, you must show that someone spiked your drink or injected you with drugs against your will.

Contact Our Criminal Defense Attorneys

A South Florida criminal defense lawyer can help you if you are considering using an affirmative defense in your criminal case.  Contact Ratzan & Faccidomo in Miami, Florida for a free, confidential consultation about your case.



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