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John "Jack" Razumich
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Understanding the Criminal Justice System

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Affirmative Defenses In Indiana

Affirmative Defenses in a court of law vary from state to state. I practice in the state of Indiana and will provide an overview of what an affirmative defense means in the state. Then, I’ll provide a list of the various types of affirmative defenses in the state along with a brief description of each.

How Indiana Defines Affirmative Defenses

In the state of Indiana, Affirmative Defenses are a type of pleading one would make as a defendant in a criminal case arguing that they did indeed commit the criminal action, but that also claim they are not responsible for the charged conduct. In an affirmative defense, the defendant is not required to prove or explain anything. It’s the prosecutor’s burden to prove two things beyond a reasonable doubt: First is that a crime happened, and secondly, that the person on trial committed the crime.

An affirmative defense basically throws a monkey wrench into the proceedings.

The defendant is openly admitting they committed the act. They are also claiming that they had a legally justifiable reason for committing the act.

So, the burden of proof shifts from having to prove guilt to having to prove that the affirmative defense is not applicable. This brings into play a shift back to the defendant who now must prove the act they committed was necessary based on preponderance of evidence.

Prosecutors Face Three Major Burdens of Proof In The State of Indiana

In any affirmative defense trial, the prosecutor must show that the affirmative defense is not applicable with three burdens of proof. They are 1) preponderance of evidence, 2) clear and convincing evidence, and 3) proof beyond a reasonable doubt. This now leads me to the 9 different statutory affirmative defenses one might be able to plead in the state of Indiana and one non-statutory or common law affirmative defense.

9 Statutory Affirmative Defenses And 1 Common Law Affirmative Defense

The 9 statutory affirmative defenses are: Legal authority, self-defense, involuntary intoxication,

Insanity, mistake of fact, duress, entrapment, abandonment, and battered spouse syndrome.

The one common law affirmative defense is necessity which predates statutory law.

Legal Authority: In this affirmative defense the argument is presented that the action would not be considered a crime if you had the legal authority to do it. This is often the plea in cases of a parent over disciplining a child. Spanking, corporeal punishment comes into play here. It’s an authority parent’s still have in the state of Indiana. If you have the legal authority as a parent or guardian you have the right to discipline your children, though the spanking or “corporeal punishment” act must not leave permanent injuries or scars. The state would have to disprove beyond a reasonable doubt that the defendant did not have the authority to engage in the act.

Self-defense: In a self-defense plea, the defendant is not denying they committed the act which could be taking the life or injuring another person. They are admitting they did, but they are arguing that they had a reasonable fear of the use of imminent force being used against them or a third party. The claim is they were acting in self-defense. If you or a third party is about to be a victim of force, you are authorized to repel that attack, but the force must be proportional. For instance, if someone is swinging a stick at you, you can’t pull out a gun and shoot them. If they were swinging a knife at you, however, you would be justified in shooting them.

I covered self-defense in my first podcast. You can go to the archives and listen if you want to know more about this affirmative defense.

Involuntary Intoxication: This is the first offense that shifts the burden of proof off of the prosecutor and to the defendant. Intoxication is defined in the state of Indiana as being under the influence of drugs, alcohol and other controlled substances that results in a loss or impairment of thought, action, and motor functions. It is a plea that is often used in DUI cases, though they are very difficult to prove since intoxication is rarely achieved involuntarily.

Insanity: A pleas of insanity can only be raised by filing a formal notice with court and must be affirmatively pled. The Court appoints two doctors to examine the defendant to discover if the defendant has a mental disease or defect. A determination must be made that the mental disease or defect prevented the defendant from appreciating the wrongfulness of actions when they occurred. This is not a get-out-of-jail-free-card. If the defendant is found to have a mental disease or defect, they will be involuntarily committed to the state mental institution.

Mistake of Fact: I’ve never seen a mistake of fact affirmative defense case. They are very rare, and I can only offer a hypothetical example: If someone hires you to break up their patio and, while in the process you find out the home isn’t owned by the person who hired you and the owner files charges against you. You would claim that you were acting under a reasonable belief that the person who requested you do the work had legal authority.

Duress: This affirmative defense is common in drug offenses. For instance, drug mules are threatened with death if they don’t carry the drugs. It’s usually a case of “I would not have committed this crime if I or my family had not been threatened.

Entrapment: This is the most misunderstood affirmative defense. The claim is that the defendant would not have committed said criminal act were they not forced by law-enforcement officers in the criminal action. The fact is that the defendant was going to commit the crime anyhow, whether it was selling drugs or sex.

Abandonment: In an affirmative defense of abandonment, the issue is whether the defendant voluntarily abandoned the criminal act before it took place. Usually these are conspiracy type cases that involve active planning and intent to commit a criminal act. Abandonment is not voluntary if once you were engaged in the crime and were confronted with challenges then abandoned, nor does abandonment include postponing the act.

Battered Spouse Syndrome: This is a relatively new affirmative defense in the state of Indiana which straddles both self-defense and insanity defenses. Many people who suffer PTSD, very often in cases of spousal abuse snap in the heat of the moment. This kind of plea may be perceived as temporary insanity during which the defendant was rendered incapable of appreciating the wrongfulness of their actions. It must be proven that the force used by the defendant was proportional to the force used against the defendant.

Necessity: This common law affirmative defense is based on the belief that sometimes you have to break the law. A number of things must proven: First that the criminal act is a result of an emergency, that there was no adequate alternative to the criminal act, and that the harm caused by criminal act was not disproportionate to the harm that was avoided. you had a belief that to prevent the harm you had to break the law, The belief must be objectively reasonable under the totality of the circumstances, and it must be proven that the defendant did not contribute to the circumstances that created the situation.

Reach out to us if you would like to discuss whether an Affirmative Defense would be beneficial to you or someone you know. Give us a call at 317- 983-5333 . Operators answer 24-hours a day.

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