Defense (legal)
Encyclopedia
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 him or her 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.
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 plaintiff; the defendant would have to prove that the plaintiff did.
, 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
.
companies.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
may raise a defense (or defence) in an attempt to avoid criminal or civil liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
. Besides contesting the accuracy of any allegation
Allegation
An allegation is a claim of a fact by a party in a pleading, which the party claims to be able to prove. Allegations remain assertions without proof, until they can be proved....
made against him or her 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.
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
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
and battery
Battery (crime)
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
case attempts to claim provocation
Provocation (legal)
In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
, the victim of said assault and battery would not have to prove that he did not provoke the plaintiff; the defendant would have to prove that the plaintiff did.
Civil law defenses
In common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, 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 immunityDiplomatic immunityDiplomatic immunity is a form of legal immunity and a policy held between governments that ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws...
. - Failure to state a cause of actionCause of actionIn the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
or other insufficiencies of pleadingPleadingIn law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
. - Any of the affirmative defenseAffirmative defenseA defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
s. - Defenses conferred by statute - such as a statute of limitationsStatute of limitationsA statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
or the statute of fraudsStatute of fraudsThe statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
. - Ex turpi causa non oritur actioEx turpi causa non oritur actioEx turpi causa non oritur actio is a legal doctrine which states that a claimant will be unable to pursue a cause of action if it arises in connection with his own illegal act...
- the action against the defendant arises from an illegality. - Volenti non fit injuriaVolenti non fit injuriaVolenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
- consentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
by the victim or plaintiff.
In addition to defenses against prosecution and liability, a defendant may also raise a defense of justification
Justification (jurisprudence)
Justification in jurisprudence is an exception to the prohibition of committing certain offenses. Justification can be a defense in a prosecution for a criminal offense. When an act is justified, a person is not criminally liable even though his act would otherwise constitute an offense. For...
- such as self-defense and defense of others or defense of property
Defense of property
The defence of property is a possible justification used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property. Courts have generally ruled that the use of force may be acceptable.-English...
.
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 financingLegal financing
Legal financing, also known as litigation financing, professional funding, settlement funding, or third party funding is a generic term used to describe the mechanism or process through which litigants can finance their litigation or other legal costs through a third party funding company...
companies.
See also
- Absolute defense
- LawsuitLawsuitA lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
- Legal defense fundLegal Defense FundIn the United States, a legal defense fund is an account set up to pay for legal expenses, which can include attorneys' fees, court filings, litigation costs, legal advice, or other legal fees. The fund can be public or private and is set up for individuals, organizations, or for a particular...
- Legal financingLegal financingLegal financing, also known as litigation financing, professional funding, settlement funding, or third party funding is a generic term used to describe the mechanism or process through which litigants can finance their litigation or other legal costs through a third party funding company...