Even if the prosecution has proven all the elements of a crime, there are circumstances where a defendant may be acquitted, including when the defense has successfully raised what is known as an affirmative defense.

An affirmative defense is one in which the defense introduces evidence that will defeat the charge against the defendant. Common affirmative defenses can include self-defense, insanity, intoxication (in some instances), duress, entrapment, mistake of fact, mistake of law and age.

An affirmative defense is used to gain an acquittal even though the prosecution may have proved its case beyond a reasonable doubt. For example, if the prosecution proves that a defendant committed murder as defined by law as the killing of one human being by another human being who had the intent to do so, but the defense can prove that the killing was in self-defense, the defendant may avoid conviction.

To put forth an affirmative defense, a defendant must offer proof that supports his or her defense while meeting the standard of proof that is set by state law. This standard is usually less than the prosecutor's burden of proof beyond a reasonable doubt — in Texas, the standard is a preponderance of the evidence, which means the facts are more likely than not to be true.

Since the prosecution bears the burden of proving all the elements of a crime beyond a reasonable doubt, an affirmative defense is generally employed when a defendant is fairly certain the prosecution can prove its case. In some cases, the defense may prevail when the prosecution fails to meet its burden of proof, without employing an affirmative defense or presenting evidence of its own. If the defense is successful at chipping away at the prosecution's evidence so that a jury finds the prosecution did not meet its burden to prove guilt beyond a reasonable doubt, a defendant can be acquitted.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or [email protected]