17.1 - II. Distinction Between Affirmative And Ordinary Defenses And Order Of Proof

• Jurisdiction: New York

II. DISTINCTION BETWEEN AFFIRMATIVE AND ORDINARY DEFENSES AND ORDER OF PROOF

As noted above, the six defenses defined by statute fall into two categories: “affirmative defenses” and those sometimes called “ordinary” or “simple” defenses.²⁴⁸¹ The essential conceptual distinction between the two is that, by asserting an ordinary defense, the defendant attempts to negate an essential element of the crime. By asserting an affirmative defense, the defendant does not challenge whether facts sufficient to make out the crime have been shown but claims his conviction is barred for some reason. By raising justification as an ordinary defense, for example, the defendant is attempting to negate the mental culpability element of crimes such as assault²⁴⁸² or homicide²⁴⁸³ by asserting that his specific intent was not to cause injury or death but, rather, to defend himself. Where the mental element is negligence or recklessness, the justification claim is that he did not act recklessly or negligently; rather, his intent was to defend himself or another from what he reasonably believed was the use or threatened use of unlawful physical force.²⁴⁸⁴

In employing an affirmative defense, however, the defendant essentially admits the crime but tries to “confess and avoid,” in the terminology of the common law. With the duress defense,²⁴⁸⁵ for example, the defendant admits that he “engaged in the proscribed conduct”²⁴⁸⁶ but alleges that he was coerced into doing so. The same is true for entrapment,²⁴⁸⁷ where the defendant admits engaging “in the proscribed conduct” but alleges that he did so because a public servant or someone working for a public servant put the idea into his head and encouraged him.

The two types of defenses differ in terms of burden of proof. Simple defenses, once interjected by the defendant, must be disproved by the People beyond a reasonable doubt.²⁴⁸⁸ On the other hand, affirmative defenses, once introduced by the defendant, must be proved by the defendant by a preponderance of the evidence.²⁴⁸⁹ This framework “provides a procedural flexibility in the ‘defense’ area permitting a reasonable burden of proof to be cast upon the defendant in situations in which it would be most inequitable to require negation beyond a reasonable doubt by the People.”²⁴⁹⁰

Casting a burden of proof on a criminal defendant is not without its constitutional problems. For example, Maine law had a requirement that a defendant charged with murder (which carried a mandatory life...