Defense (legal)
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In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence)[a] in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.[2]
Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability.
The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase.
Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, a defendant who is charged with assault may claim provocation, but they would need to prove that the plaintiff had provoked the defendant.
Common law defenses
[edit]In common law, a defendant may raise any of the numerous defenses to limit or avoid liability. These include:
- Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity. (In law, this is not a defense as such but an argument that the case should not be heard at all.)
- Failure to state a cause of action or other insufficiencies of pleading.
- Any of the affirmative defenses.
- Defenses conferred by statute – such as a statute of limitations or the statute of frauds.
- Ex turpi causa non oritur actio – the action against the defendant arises from an illegality.
- Volenti non fit injuria – consent by the victim or plaintiff.
- In pari delicto – both sides equally at fault.
- Act of God is an unforseeable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen.
- Necessity harm done to prevent a greater evil is not actionable even though the harm was caused intentionally.
- Mistake whether of fact or of law is no defence to action.
- The law permits use of reasonable force to protect one's person or property. If force is used for self-defence they will not be liable for harm.
- Unclean hands.
In addition to defenses against prosecution and liability, a defendant may also raise a defense of justification – such as self-defense and defense of others or defense of property.
In English law, one could raise the argument of a contramandatum, which was an argument that the plaintiff had no cause for complaint.[3]
Strategies
[edit]The defense in a homicide case may attempt to present evidence of the victim's character, to try to prove that the victim had a history of violence or of making threats of violence that suggest a violent character.[4][5] The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense,[4] or in the hope of accomplishing jury nullification in which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act.[6]
Costs
[edit]Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. A defendant can pay with their own money, through legal defense funds, or legal financing companies. For example, in the United Kingdom, a defendant's legal fees may be covered by legal aid.[7]
See also
[edit]- Absolute defense
- Lawsuit
- Legal defense fund
- Legal financing
- Self-defense
- Atturnato faciendo vel recipiendo
Notes
[edit]- ^ The traditional spelling "defence" was used in both American English and British English as late as the 1930s. Since then, Americans have come to regard "defence" as a British affectation and they use "defense" instead.[1]
References
[edit]- ^ Garner, Bryan A. (2011). Garner's Dictionary of Legal Usage (3rd ed.). Oxford: Oxford University Press. p. 257. ISBN 9780195384208. Retrieved September 10, 2023.
- ^ ""Defense"". The Law Dictionary. 9 November 2011. Retrieved 24 July 2021.
- ^
Chambers, Ephraim, ed. (1728). "Contramandatum". Cyclopædia, or an Universal Dictionary of Arts and Sciences. Vol. 1 (1st ed.). James and John Knapton, et al. p. 318.
- ^ a b Behan, Christopher W. (2007). "When Turnabout is Fair Play: Character Evidence and Self-Defense in Homicide and Assault Cases" (PDF). Oregon Law Review. 86 (3): 733–796. Archived (PDF) from the original on 15 September 2015. Retrieved 31 July 2017.
- ^ Kleiss, Mary K. (1999). "A New Understanding of Specific Act Evidence in Homicide Cases Where the Accused Claims Self-Defense" (PDF). Indiana Law Review. 32: 1439. Archived (PDF) from the original on 1 August 2017. Retrieved 31 July 2017.
- ^ Imwinkelreid, Edward J. (January 2006). "An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances". University of Richmond Law Review. 40 (2): 426.
- ^ "Legal aid". GOV.UK. Government of the United Kingdom.
External links
[edit]
Media related to Legal defenses at Wikimedia Commons
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