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.
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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:
- 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
- Unclean hands
In English law, one could raise the argument of a contramandatum, which was an argument that the plaintiff had no cause for complaint.
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, 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.
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.
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.
- 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.
- 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.
- 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.