AFFIRMATIVE DEFENSE
A new fact or set of facts that operates to defeat a
claim even if the facts supporting that claim are true.
A plaintiff sets forth a claim in a civil action
by making statements in the document called
the complaint. These statements must be sufficient
to warrant relief from the court. The
defendant responds to the plaintiff ’s claims by
preparing an answer in which the defendant
may deny the truth of the plaintiff ’s allegations
or assert that there are additional facts that constitute
a defense to the plaintiff ’s action. For
example, a plaintiff may demand compensation
for damage done to his or her vehicle in an
automobile accident.Without denying responsibility
for the accident, the defendant may claim
to have an affirmative defense, such as the plaintiff
’s contributory NEGLIGENCE or expiration of
the STATUTE OF LIMITATIONS.
An affirmative defense is also allowed under
rules of CRIMINAL PROCEDURE. For example, a
defendant accused of assault may claim to have
been intoxicated or insane, to have struck out in
SELF-DEFENSE, or to have had an alibi for the
night in question. Any one of these affirmative
defenses must be asserted by showing that there
are facts in addition to the ones in the indictment
or information charging the defendant
and that those additional facts are legally sufficient
to excuse the defendant.
The rules that govern PLEADING in most
courts require a defendant to raise all affirmative
defenses when first responding to the civil claim
or criminal charges against him or her. Failure to
do so may preclude assertion of that kind of
defense later in the trial.
