Affirmative Defenses

• A defendant’s assertion of facts and arguments that, if true, will defeat the . . . prosecution’s claim, even if all the allegations in the complaint are true.

Black’s Law Dictionary ? (10th ed. 2014)

• An affirmative defense admits all the elements of the crime but proves circumstances which excuse the defendant from culpability.

Melendez v. State, 511 N.E.2d 454, 457 (Ind.1987)

• The successful mistake of fact defense precludes the imposition of criminal penalty, as does, for example, the defense of intoxication, because an element of the crime, namely, culpability or intent, is negated. In other words, because the act and the state of mind identified by the statute did not occur in criminal conjunction, there was no crime. The legislature has also created true affirmative defenses, such as entrapment or self-defense, which consist of elements which interdict criminal penalty for acts which would otherwise be punishable. A true affirmative defense is a defense not because the defendant acted without the requisite mental state, but because his knowing or intentional acts are excused or justified.

Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990)(emphasis added)(citation omitted)

Raising an affirmative defense

• A defendant bears the initial burden to prove any affirmative defense by a preponderance of the evidence.

Neese v. State, 994 N.E.2d 336, 340 (Ind. Ct. App. 2013)(citing Harrison v. State, 901 N.E.2d 635, 640 (Ind. Ct. App. 2009), trans. denied)

See Adkins v. State, 887 N.E.2d 934, 938 (Ind. 2008)(citing Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001))(“A defendant bears an initial burden of proof by a preponderance of the evidence on any affirmative defense.”)

Overcoming an affirmative defense

• If the defendant meets this initial burden, the State is then required to rebut the defense.

Neese v. State, 994 N.E.2d 336, 340 (Ind. Ct. App. 2013)(citing Harrison v. State, 901 N.E.2d 635, 640 (Ind. Ct. App. 2009), trans. denied)

• [T]he burden of proving all elements of a criminal offense beyond a reasonable doubt rests with the State. This ultimate burden of persuasion never shifts to the defendant, and the raising of an affirmative defense does not relieve the State of its ultimate burden of proof.

Geljack v. State, 671 N.E.2d 163, 164-65 (Ind. Ct. App. 1996)(citations omitted)

See Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989), reh’g denied(citing Smith v. State, 249 N.E.2d 493, 500 (Ind. 1969)(“This Court has held many times that the burden of proving all elements of a charged crime beyond a reasonable doubt rests with the State and the raising of an affirmative defense does not relieve the State of such burden.”)

Relationship to statutory exceptions

• [A statutory exception is a] provision in a statute exempting certain persons or conduct from the statute’s operation.

Black’s Law Dictionary ? (10th ed. 2014)

See State v. Barrett, 87 N.E. 7, 9 (Ind. 1909)(citation omitted)(“Provisos and exceptions are similar. They are intended to restrain the enacting clause, to except something which would otherwise be within it, something ingrafted upon a preceding enactment, intended to take special cases out of a general class, and the general intent and purpose of an enacting clause will be controlled by the particular intent subsequently expressed.”)

• “[I]n determining whether a statutory exception is a material element or an affirmative defense, we assess the location of the exception relative to the location of the definition of the principal offense.”

Wilson v. State, 4 N.E.3d 670, 676 (Ind. Ct. App. 2014)(quoting Lyles v. State, 970 N.E.2d 140, 143 n. 3 (Ind. 2012))

• “If the exception is closely connected with the clause creating the offense, the exception is a material element of [the] offense” that the State must prove.

Wilson v. State, 4 N.E.3d 670, 676 (Ind. Ct. App. 2014)(quoting Lyles v. State, 970 N.E.2d 140, 143 n. 3 (Ind. 2012))

• But if “the exception is contained in a subsequent clause or statute, the exception is an affirmative defense that must be raised by the defendant.”

Wilson v. State, 4 N.E.3d 670, 676 (Ind. Ct. App. 2014)(quoting Lyles v. State, 970 N.E.2d 140, 143 n. 3 (Ind. 2012))

Abandonment

• For more information about the affirmative defense of abandonment, please review Abandonment.

Duress

• For more information about the affirmative defense of duress, please review Duress.

Entrapment

• For more information about the affirmative defense of entrapment, please review Entrapment.

Insanity

• For more information about the affirmative defense of mental disease or defect, please review Insanity.

Necessity

• For more information about the affirmative defense of necessity, please review Necessity.

Self-defense

• For more information about the affirmative defense of self-defense, please review Self-Defense.