We often hear of a person charged with a criminal offense in Arizona who has raised a “defense” to the pending charges. At other times, the statement is that the defendant has an “affirmative defense” which will be offered at or prior to trial. Is there a difference between the two, and if so, how do they differ?
Our starting point is ARS 13-103. That statute first abolishes “common law” offenses. These are, generally speaking, offenses defined by court decisions and not by statutes. That means that in Arizona, you can only be charged with crimes that are defined in criminal laws, often the Arizona Criminal Code, which appears in Title 13 of the Arizona Revised Statutes. The law also states that common law “affirmative defenses” are likewise abolished. It defines affirmative defenses as conduct which is offered to excuse the defendant’s criminal act(s).
When it comes to the difference between the types of defenses, the following generally describes what is meant by each:
- “I didn’t do it!” I am accused of assault, but I was one hundred miles away. I have many witnesses at the time the crime was allegedly committed. Simply stated, I have an alibi. This is a traditional defense: the state cannot prove beyond a reasonable doubt that I was even at the scene of the crime, let alone that I committed the acts alleged. (Believe it or not, in Arizona justification defenses are not affirmative defenses, meaning the state must prove beyond a reasonable doubt a defendant was unjustified!)
- “I did it, but I am not guilty because I have an excuse!” I am accused of assault, and I totally did it, but I had been so badly beaten by my victim-spouse over the past several years that, under a theory of Battered Woman Syndrome, I can be excused. If I can prove by a preponderance of the evidence that I was under duress, I am not guilty by reason of an affirmative defense.
The difference between the two types of defenses is significant. It includes the fact that a conviction requires the prosecution to prove you are guilty beyond a reasonable doubt, an extremely high standard. In the case of an affirmative defense, however, while the defendant has the burden of proving the affirmative defense, the standard of proof is much lower – not beyond a reasonable doubt, but rather by a preponderance of the evidence, i.e., more likely than not.
Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028