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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:

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

References

  1. ^  Chambers, Ephraim, ed. (1728). "Contramandatum". Cyclopædia, or an Universal Dictionary of Arts and Sciences. 1 (first ed.). James and John Knapton, et al. p. 318.
  2. ^ 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.
  3. ^ 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.
  4. ^ 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.