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Posted: 3/28/2006 6:07:04 PM EDT
I need a legal definition of what an "affirmative defense" is.

Thank you.
Link Posted: 3/28/2006 6:08:54 PM EDT
[Last Edit: 3/28/2006 6:10:57 PM EDT by El_Abogado]

Originally Posted By Wobblin-Goblin:
I need a legal definition of what an "affirmative defense" is.

Thank you.



From the Legal Information Institute:


A defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Self-defense, insanity, and necessity are some examples of affirmative defenses. see, e.g. Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998).



It's been awhile since I've done trial work, but there may be time limits to your bringing forward your affirmative defense. Why are you asking about affirmative defenses?

BTW, this is not legal advice and I am not your lawyer.
Link Posted: 3/28/2006 6:10:30 PM EDT
so what did you do? cough it up! we demand answers!

Link Posted: 3/28/2006 6:16:47 PM EDT
[Last Edit: 3/28/2006 6:17:58 PM EDT by NoVaGator]
not a lawyer, but things like statute of limitations, prior breach, insanity, self defense, etc are also affirmative defenses.
Link Posted: 3/28/2006 6:18:00 PM EDT
Hmmmm. That was helpful. More background on this would be nice, too.
Link Posted: 3/28/2006 6:20:47 PM EDT
[Last Edit: 3/28/2006 6:21:47 PM EDT by El_Abogado]

Originally Posted By Wobblin-Goblin:
Hmmmm. That was helpful. More background on this would be nice, too.



WTF? "More background on this would be nice?" Dude, you made the initial requiest for information. What is it you are looking for?
Link Posted: 3/28/2006 6:22:59 PM EDT

Originally Posted By El_Abogado:

Originally Posted By Wobblin-Goblin:
Hmmmm. That was helpful. More background on this would be nice, too.


WTF? "More background on this would be nice?" Dude, you made the initial requiest for information. What is it you are looking for?


Dude, chill. I'm trying to cover all my bases on something, ok?
Link Posted: 3/28/2006 6:28:19 PM EDT

Originally Posted By Wobblin-Goblin:

Originally Posted By El_Abogado:

Originally Posted By Wobblin-Goblin:
Hmmmm. That was helpful. More background on this would be nice, too.


WTF? "More background on this would be nice?" Dude, you made the initial requiest for information. What is it you are looking for?


Dude, chill. I'm trying to cover all my bases on something, ok?



I got it. Just tell the court you were trying to help the sheep over the fence.
Link Posted: 3/28/2006 6:35:19 PM EDT
Here is what it is all about. The two subsections of this law appear to be in conflict of each other, effectively cancelling each other out, but I'm not sure.

(i) (1) In any prosecution for a violation of subsection (c) of this section, evidence that a law enforcement agency seized or recovered a pistol or revolver that was not in the possession of the owner thereof at the time of such seizure or recovery shall be prima facie evidence that such owner sold, delivered or transferred such pistol or revolver in violation of the provisions of this section.

(2) In any prosecution for a violation of subsection (c) of this section, it shall be an affirmative defense that the defendant (A) did not act with criminal negligence in storing or keeping the pistol or revolver, or (B) reported the theft or loss of the pistol or revolver to the organized local police department for the town in which the theft or loss occurred or, if such town does not have an organized local police department, to the state police troop having jurisdiction for such town prior to the seizure or recovery of such pistol or revolver by a law enforcement agency.


Subsection 1 says the mere evidence is worthy of a prima facie case, but subsection 2 says you can have an affirmative defense. Is this written so subsection 2 can trump subsection 1?
Link Posted: 3/28/2006 6:41:09 PM EDT
An affirmative defense is where the party charged has to affirmativerly prove their defence..... kind of opposite the innicent until proven guil;ty. Once the prosecution proves its case, the defendant must prove that he fell under one of the affirmative exceptions (defenses).
Link Posted: 3/28/2006 6:41:40 PM EDT
[Last Edit: 3/28/2006 6:43:13 PM EDT by GonzoAR15-1]

Originally Posted By Wobblin-Goblin:
Here is what it is all about. The two subsections of this law appear to be in conflict of each other, effectively cancelling each other out, but I'm not sure.

(i) (1) In any prosecution for a violation of subsection (c) of this section, evidence that a law enforcement agency seized or recovered a pistol or revolver that was not in the possession of the owner thereof at the time of such seizure or recovery shall be prima facie evidence that such owner sold, delivered or transferred such pistol or revolver in violation of the provisions of this section.

(2) In any prosecution for a violation of subsection (c) of this section, it shall be an affirmative defense that the defendant (A) did not act with criminal negligence in storing or keeping the pistol or revolver, or (B) reported the theft or loss of the pistol or revolver to the organized local police department for the town in which the theft or loss occurred or, if such town does not have an organized local police department, to the state police troop having jurisdiction for such town prior to the seizure or recovery of such pistol or revolver by a law enforcement agency.


Subsection 1 says the mere evidence is worthy of a prima facie case, but subsection 2 says you can have an affirmative defense. Is this written so subsection 2 can trump subsection 1?



Prima facia case means "you clear the hurdle for us to take you trial" -- its a preliminary hearing booster. They show the mere facts in (1) and you're going before the jury.

When you are before the jury, you have an affirmative defense if you can prove no. 2; and if proven, it is supposed to get you off. The shitty thing about affirmative defenses is that they are burden shifters. The prosecutor needs only to prove one. You have to prove 2 or you go to jail.

The statute is written to make it as easy as possible to prosecute, and as hard as possible to defend.

Not surprising.

Gonzo(its too late to fix the system but to early to shoot the bastards)AR15-1
Link Posted: 3/28/2006 6:44:04 PM EDT
Where is that from, WG?
Link Posted: 3/28/2006 6:51:35 PM EDT
[Last Edit: 3/28/2006 6:52:17 PM EDT by Badseed]
at present count, how many people that responded are lawyers?

How many responded to bust balls out of boredom?

The man asked for lawyers.. sheesh

Link Posted: 3/28/2006 7:22:12 PM EDT
I will post in a separate thread why I asked this question.
Link Posted: 3/28/2006 7:25:50 PM EDT
We really need to know what "subsection c" is.
Link Posted: 3/28/2006 7:27:44 PM EDT

Originally Posted By GonzoAR15-1:

Originally Posted By Wobblin-Goblin:
Here is what it is all about. The two subsections of this law appear to be in conflict of each other, effectively cancelling each other out, but I'm not sure.

(i) (1) In any prosecution for a violation of subsection (c) of this section, evidence that a law enforcement agency seized or recovered a pistol or revolver that was not in the possession of the owner thereof at the time of such seizure or recovery shall be prima facie evidence that such owner sold, delivered or transferred such pistol or revolver in violation of the provisions of this section.

(2) In any prosecution for a violation of subsection (c) of this section, it shall be an affirmative defense that the defendant (A) did not act with criminal negligence in storing or keeping the pistol or revolver, or (B) reported the theft or loss of the pistol or revolver to the organized local police department for the town in which the theft or loss occurred or, if such town does not have an organized local police department, to the state police troop having jurisdiction for such town prior to the seizure or recovery of such pistol or revolver by a law enforcement agency.


Subsection 1 says the mere evidence is worthy of a prima facie case, but subsection 2 says you can have an affirmative defense. Is this written so subsection 2 can trump subsection 1?



Prima facia case means "you clear the hurdle for us to take you trial" -- its a preliminary hearing booster. They show the mere facts in (1) and you're going before the jury.

When you are before the jury, you have an affirmative defense if you can prove no. 2; and if proven, it is supposed to get you off. The shitty thing about affirmative defenses is that they are burden shifters. The prosecutor needs only to prove one. You have to prove 2 or you go to jail.

The statute is written to make it as easy as possible to prosecute, and as hard as possible to defend.

Not surprising.

Gonzo(its too late to fix the system but to early to shoot the bastards)AR15-1



What he said. Looks like all the prosecution needs to do is show that the condition of (1) is met and they get to go to a jury. If you want to prove that you meet the conditions of (2), it's an affirmative defense and the burden is on you to prove it to the jury.
Link Posted: 3/28/2006 7:28:01 PM EDT

Originally Posted By Badseed:
at present count, how many people that responded are lawyers?

How many responded to bust balls out of boredom?

The man asked for lawyers.. sheesh




I'd say 2 of the above are attorneys and the 3rd is a law clerk.

In laymans terms, it means you can beat the rap but you can't beat the ride.
Link Posted: 3/28/2006 7:32:35 PM EDT

Originally Posted By kikomax:

Originally Posted By Badseed:
at present count, how many people that responded are lawyers?

How many responded to bust balls out of boredom?

The man asked for lawyers.. sheesh




I'd say 2 of the above are attorneys and the 3rd is a law clerk.

In laymans terms, it means you can beat the rap but you can't beat the ride.



I don't follow the analogy.... reading literally (rough translation), "you're guilty/ now yer innocent or not".

I'm not a lawyer, so I must vacate this thread.
Link Posted: 3/28/2006 7:35:56 PM EDT
Link Posted: 3/28/2006 7:43:03 PM EDT
[Last Edit: 3/28/2006 7:45:36 PM EDT by FordGuy]

Originally Posted By Wobblin-Goblin:
I need a legal definition of what an "affirmative defense" is.

Thank you.



WG, im a lawyer. i won't read the responses, just give you my two cents, an affirmative defense must be raised in a responsive pleading or it is waived forever.
Link Posted: 3/28/2006 7:56:08 PM EDT
[Last Edit: 3/28/2006 7:57:49 PM EDT by GonzoAR15-1]

Originally Posted By kikomax:

Originally Posted By Badseed:
at present count, how many people that responded are lawyers?

How many responded to bust balls out of boredom?

The man asked for lawyers.. sheesh




I'd say 2 of the above are attorneys and the 3rd is a law clerk.

In laymans terms, it means you can beat the rap but you can't beat the ride.



I'm an attorney, and this kind of statute really burns my ass.

I think your description of "you can beat the rap, but you can't beat the ride" is a perfect one.

What's really crazy about the language WG quotes is the fact that they make reporting a stolen firearm mandatory at the same time as they criminalize the negligent storage of a gun.
I'd say right on the face of it, that statute's going to have a pretty serious problem with the 5th amendment of the US Constitution.
Link Posted: 3/28/2006 7:56:15 PM EDT

Originally Posted By Badseed:

Originally Posted By kikomax:

Originally Posted By Badseed:
at present count, how many people that responded are lawyers?

How many responded to bust balls out of boredom?

The man asked for lawyers.. sheesh




I'd say 2 of the above are attorneys and the 3rd is a law clerk.

In laymans terms, it means you can beat the rap but you can't beat the ride.



I don't follow the analogy.... reading literally (rough translation), "you're guilty/ now yer innocent or not".

I'm not a lawyer, so I must vacate this thread.



Basically, what I'm saying is an affirmative defense is plead or stated by the defendant after he has been sued or charged, depending on whether a civil or criminal case.

If the affirmative defense is proved, the defendant wins as to that issue, but usually not after some time and expense on his part. Hence, beating the rap but not the ride.

There are many affirmative defenses. The classic one in a civil case is the statute of limitations. You must sue someone within a certain time period and if you don't, the other guy raises the statute of limitations as an affirmative defense and upon proper proof, he wins.

I'm off to see what this is about in the other thread.
Link Posted: 3/29/2006 3:24:22 AM EDT
Prima facie evidence is evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted. The burden of going forward shifts to the defendant to establish, by affirmative defense, that his actions were legal.

Others have said the same thing above. And yes, I'm a lawyer AND I posted to bust his balls!

Good luck with your legal problem.
Link Posted: 3/29/2006 5:51:31 AM EDT
In plain English, "Yes, your Honor, but I have a good excuse..."
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