HOME

TheInfoList



OR:

In a
civil proceeding Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights *Civil disobedience * Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a memb ...
or criminal prosecution under the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
or under
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims. Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the 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. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability. 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, a defendant who is charged with assault may claim
provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur, a (generally political) group that tries to goad a desired re ...
, but they would need to prove that the plaintiff had provoked the defendant.


Common law defenses

In
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
, 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. * Act of God is an unforseable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen. * ''Necessity'' harm done to prevent a greater evil is not actionable even though the harm was caused intentionally. * Mistake whether of fact or of law is no defence to action. * The law permits use of reasonable force to protect one's person or property. If force is used for self-defence they will not be liable for harm. * 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 The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property. English law Gener ...
. In English law, one could raise the argument of a ''contramandatum'', which was an argument that the plaintiff had no cause for complaint.


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. The goal of presenting character evidence about the victim may be to make more plausible a claim of
self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force ...
, or in the hope of accomplishing
jury nullification Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict despite a defendant having clearly broken the law. The jury's reasons may include the belief that the ...
in which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act.


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. A defendant can pay with their own money, through legal defense funds, or
legal financing Legal financing (also known as litigation financing, professional funding, settlement funding, third-party funding, third-party litigation funding (TPLF), legal funding, lawsuit loans and, in England and Wales, litigation funding) is the mechanism o ...
companies. For example, in the United Kingdom, a defendant's legal fees may be covered by legal aid.


See also

* Absolute defense * Lawsuit * Legal defense fund *
Legal financing Legal financing (also known as litigation financing, professional funding, settlement funding, third-party funding, third-party litigation funding (TPLF), legal funding, lawsuit loans and, in England and Wales, litigation funding) is the mechanism o ...
*
Self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force ...
* Atturnato faciendo vel recipiendo


References


External links

* Criminal procedure Civil procedure Evidence law Testimony {{law-term-stub