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] [3]

Contents

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

In common law, a defendant may raise any of the numerous defenses to limit or avoid liability. These include:

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. [4]

Strategies

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. [5] [6] The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense, [5] 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. [7]

Costs

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. [8]

See also

Notes

  1. ↑ 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]

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A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

In a legal dispute, one party has the burden of proof to show that they are correct, while the other party has no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.

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A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

The right of self-defense is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including, in certain circumstances, the use of deadly force.

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, entrapment and the statute of limitations.

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  2. the form in which the character evidence is offered
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Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

In the state of Maryland, the right of self-defense is mostly governed by case law, but there is also a statute.

In the North American legal system and in US Occupational Safety and Health Administration regulations, willful violation or willful non-compliance is a violation of workplace rules and policies that occurs either deliberately or as a result of neglect.

<i>Landeros v. Flood</i> Court case in California

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<span class="mw-page-title-main">Criminal law of the United States</span>

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References

  1. ↑ Garner, Bryan A. (2011). Garner's Dictionary of Legal Usage (3rd ed.). Oxford: Oxford University Press. p. 257. ISBN   9780195384208 . Retrieved September 10, 2023.
  2. ↑ Garner, Bryan, ed. (2009). Black's law dictionary (9th ed.). St. Paul, MN: West. p. 482. ISBN   9780314199492.
  3. ↑ Allen, Ronald J.; Pardo, Michael S. (2003). "The Myth of the Law-Fact Distinction". Northwestern University Law Review. 97 (4): 1769.
  4. ↑ PD-icon.svg  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.
  5. 1 2 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.
  6. ↑ 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. doi:10.18060/3386. Archived (PDF) from the original on 1 August 2017. Retrieved 31 July 2017.
  7. ↑ 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.
  8. ↑ "Legal aid". GOV.UK. Government of the United Kingdom.


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