Defense (legal)
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense (or defence) in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against them in a criminal or civil proceeding, a 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.
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, if a defendant in an assault and battery case attempts to claim provocation, the victim of said assault and battery would not have to prove that he did not provoke the defendant; the defendant would have to prove that the plaintiff did.
Common law defenses
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
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.[1]
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.[2][3] The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense,[2] 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.[4]
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. Defendants can pay with their own money, through legal defense funds, or legal financing companies.
See also
Absolute defense
Legal defense fund
Legal financing
Self-defense
Atturnato faciendo vel recipiendo