What is an “Affirmative Defense” (and How Do You Use One in New Jersey)?
Posted by Scott Gorman - August 17, 2023

If you are facing any type of criminal charge in New Jersey, you need to defend yourself by all means available. A conviction could mean fines and prison time (among other penalties), and having a criminal record will negatively impact multiple aspects of your life. When you hire an Essex County criminal defense attorney to represent you, your attorney will evaluate all of your options—including the option of asserting an “affirmative defense.”

What is an “Affirmative Defense?

An affirmative defense is a type of defense that involves acknowledging that you did something that would constitute a crime under normal circumstances. But, based on the circumstances of your case, your action was either justified or excused. Effectively, asserting an affirmative defense involves saying, “Yes, I committed a criminal act, but I am not guilty because . . . .”

While this can be an effective defense strategy, it can also be risky. As a result, asserting an affirmative defense requires skilled legal representation. This is true for all types of affirmative defenses that are available in New Jersey, including (but not limited to):

  • Self-Defense – You had to take forceful action to protect yourself.
  • Defense of Others – Similar to self-defense, but you were protecting someone else instead of protecting yourself.
  • Defense of Premises or Property – You stood your ground to protect your home or property.
  • Involuntary Intoxication – Someone drugged you or got you drunk without your knowledge.
  • Diminished Capacity or Insanity – You suffered from a mental illness or disorder that impacted your ability to act with intention.
  • Necessity – You had to commit a criminal act in order to avoid greater harm.
  • Duress or Entrapment – You were coerced or threatened into engaging in criminal conduct.

Asserting an Affirmative Defense in a New Jersey Criminal Case

Similar to criminal charges, each of these affirmative defenses has several “elements.” When you hire an Essex County criminal defense attorney to represent you, your attorney can examine the facts of your case to determine whether you are likely to be able to prove all of the elements of an affirmative defense in court.

This raises another important point: While the prosecution has the burden of proof in criminal cases, when you assert an affirmative defense, the burden shifts to you. To successfully assert an affirmative defense, you must prove the facts that support the defense (rather than simply showing that the prosecution hasn’t met its burden of proving your guilt beyond a reasonable doubt). This is not easy—and, as noted above, it can be risky. As a result, it is essential that you have an experienced attorney on your side.

Discuss Your Case with Essex County Criminal Defense Attorney Scott Gorman

Do you have questions about asserting an affirmative defense in your New Jersey criminal case? If so, we encourage you to contact us for more information. Call 862-250-6201 or request a free consultation online to schedule an appointment with Essex County criminal defense attorney Scott Gorman.

Published in Categories: Criminal Defense