Defenses to the charges are always an appropriate area to explore and raise early in the litigation process. Some of them will require the presentation of special documents and the inclusion of witnesses in a timely manner or the Court will consider them waived. The defenses listed below are blanket denials and are always open to argument by the Defense at trial.

“I did not do it!”

“The State cannot prove a case against me beyond a reasonable doubt!”

“No crime was even committed!”

The specific defenses that will need to be proven affirmatively at trial to be full defenses raise other considerations for the Defense. Examples of these are discussed so that you can better understand the terminology and its meaning. An affirmative defense is one that must be revealed to the prosecution before trial and requires the Defense to offer evidence through testimony or actual (physical) evidence at trial.

Alibi

For many people, the word “alibi” implies a trick thrown just to “win the rap.” It is often thought of as just any excuse, a connotation that trial attorneys need to dispel. An astute trial attorney will take care of this during jury selection so that the true meaning of the word alibi is clear in the minds of prospective jurors. He/she must emphasize the meaning as defined in Webster’s Dictionary, “in the law, the allegation, or the fact that an accused person was elsewhere than at the alleged scene of the crime of which he/she is charged.” The law recognizes that if a home invasion occurs in Miami but the defendant was in Chicago, he has a true Alibi defense and is clearly not guilty.

The rules require the defendant to file an Alibi Notice no later than 10 days before trial. That notice must disclose the names of all witnesses the Defense may call to prove the alibi. If there are documents that prove that the defendant was in Chicago and not in Miami on the date and time of the alleged crime, copies must be provided to the prosecutor. These documents may include hotel receipts, airline receipts, meeting agendas, etc. Producing them will give the prosecution a chance to drop the charges before a costly and time-consuming trial.

Like all affirmative defenses, Alibi is a complete defense. The jury will be told that if it determines that the defendant was not present when the crime was committed (had an alibi), then it is the duty of the jury to find the defendant not guilty.

Self Defense {Justifiable Use of Force}

A man leaves the cinema with his date. They almost make it to his car when three guys show up. One strikes the knight who quickly ducks with an iron bar, knocking the attacker off balance. As he does so, the knight grabs the iron rod and strikes the attacker over the head, knocking him unconscious. The other two possible attackers flee. The gentleman waits for the police and describes the event. Did he justifiably act to protect himself and his girlfriend? What happens if the unconscious attacker is pronounced “dead on arrival” by paramedics?

The law recognizes that a person is justified in using force against another when they reasonably believe that such conduct is necessary to “defend themselves or another person against the imminent use of unlawful force by the attacker.” In many states, including Florida, a person is justified in using deadly force and does not have a duty to retreat. He can hold his own against an attacker. He is justified in using deadly force to prevent imminent death or great bodily harm, or to prevent a serious crime by force, such as robbery or rape.

Also, force is justified in defense of your home and (to some extent) in defense of other people. There is no requirement (in Florida) to leave as long as you are in a place where you have a right to be. In these cases, the law makes self-defense a full defense to a crime of undue assault. Of course, Defense Counsel must affirmatively prove certain underlying facts at trial to support his argument that this case involved self-defense.

Craziness

An issue may arise during a case regarding the defendant’s sanity during the time the crime was committed. This will require affirmative evidence, much of which will be from professional mental health expert witnesses. There is a two part test to determine if the defendant was insane. First, can it be proven that the defendant suffered from a mental infirmity, disease, or defect? You can expect lengthy testimonials from various experts on conditions like bipolar disorder, schizophrenia, or other quantifiable disorders and how they can be affected by long-term use of alcohol or cocaine, lack of sleep, food and water deprivation, etc. However, once these conditions are defined and described, more is required in terms of testing.

Second, directly related to this disorder, can it be proven that the defendant did not know what he was doing or did not realize the consequences? Even if he knew what he was doing and realized the consequences, did he know it was wrong?

The law presumes that people are sane. This means that the defense has the burden of proving that the defendant was “not sane” or “insane.” It’s an incredible burden to taste madness. What the attorney is telling the jury is that, “Everything the State says happened really did happen, it’s all true. However, you shouldn’t find him guilty because he was crazy when he did it.” The murder or rape of the child occurred, but you must find the defendant not guilty by reason of insanity.

If the jury verdicts not guilty by reason of insanity, the court will have jurisdiction over the defendant for the full length of the sentence allowed if convicted. Instead of sentencing you to state prison, the judge will place you in a psychiatric confinement facility. The conditions of such an installation are much worse. The Defense cannot describe this to the jury directly during the trial. For this reason, jurors think that an insanity verdict means that the defendant will simply walk out of the courtroom and out into the street. As you can see, the insanity defense is very difficult to prove successfully. It is generally reserved for only the most difficult cases, such as first-degree murder or death penalty litigation.

In this article we have discussed the three main affirmative defenses that the Defense could present in a proper case. Remember, in order to argue in closing argument that one or more of these defenses apply, the Defense Attorney must be able to point to specific facts that support these defenses from the case record.