In a

civil proceeding Civil law is a major "branch of the law", in common law legal systems such as those in England and Wales and in the United States, where it stands in contrast to criminal law. Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1 ...

criminal prosecution In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

under the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

or under

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

, a

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

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 In law, an allegation is a claim of an unproven fact by a party in a pleading, charge, or defense. Until they can be proved, allegations remain merely assertions. Types of allegations Marital allegations There are also marital allegations: m ...

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 In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...

occurs after the

prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the

cross-examination In law, cross-examination is the interrogation of a witness by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

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 In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...

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 An is a person who actively entices another person to commi ...

, but they would need to prove that the plaintiff had provoked the defendant.

Common law defenses

, a defendant may raise any of the numerous defenses to limit or avoid liability. These include: * Lack of

personal Personal may refer to: Aspects of persons' respective individualities * Privacy * Personality * Personal, personal advertisement, variety of classified advertisement used to find romance or friendship Companies * Personal, Inc., a Washington, ...

subject matter jurisdiction Subject-matter jurisdiction, also called jurisdiction ''ratione materiae'', is a legal doctrine regarding the ability of a court to lawfully hear and adjudicate a case. Subject-matter relates to the nature of a case; whether it is criminal, ci ...

of the court, such as

diplomatic immunity Diplomatic immunity is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country.

. (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 A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

or other insufficiencies of

pleading In law as practiced in countries that follow the English models, a pleading is a formal written statement of one party's claims or defenses in response to another party's complaint(s) in a civil action. The parties' pleadings in a case define t ...

. * Any of the

affirmative defense An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's ...

s. * Defenses conferred by statute – such as a

statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...

or the

statute of frauds The Statute of Frauds ( 29 Cha. 2. c. 3) (1677) is an act of the Parliament of England. In its original form it required that certain types of contracts, wills, and grants, and assignment or surrender of leases or interest in real property mu ...

. * ''

Ex turpi causa non oritur actio ' (Latin "action does not arise from a dishonourable cause") is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. The corresponding ''Ex turp ...

'' – the action against the defendant arises from an illegality. * ''

Volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a Roman legal maxim and common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing ...

'' –

consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions used in such fields as the law, medicine, research, and sexual consent. Consent as understood i ...

by the victim or plaintiff. * ''

In pari delicto ''In pari delicto (potior/melior est conditio possidentis)'', Latin for "in equal fault (better is the condition of the possessor)", is a legal term used to refer to two persons or entities who are equally at fault, whether the malfeasance in que ...

'' – both sides equally at fault. *

Act of God In legal usage in the English-speaking world, an act of God, act of nature, or damnum fatale ("loss arising from inevitable accident") is an event caused by no direct human action (e.g. Severe weather, severe or extreme weather and other natur ...

is an unforeseeable 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 English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, 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 Homicide is an act in which a person causes the death of another person. A homicide requires only a Volition (psychology), volitional act, or an omission, that causes the death of another, and thus a homicide may result from Accident, accidenta ...

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 (law), ...

, or in the hope of accomplishing

jury nullification Jury nullification, also known as jury equity or as a perverse verdict, is a decision by the jury in a trial, criminal trial resulting in a verdict of Acquittal, not guilty even though they think a defendant has broken the law. The jury's reas ...

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, legal funding, lawsuit loans and, in England and Wales, litigation funding) is the mechanism or pro ...

companies. For example, in the United Kingdom, a defendant's legal fees may be covered by

legal aid Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right ...

Notes

References

External links