What is An Affirmative Defense? 

Everything You Need to Know About Affirmative Defenses in NC

In certain circumstances, some criminal defendants may be entitled to an acquittal — even when the prosecution has proven all elements of their case. This is what’s known as using an “affirmative defense.” 

Understanding what an affirmative defense is and what qualifies as an affirmative defense under North Carolina law is imperative to ensuring the best outcome for your case. By finding a knowledgeable criminal defense attorney to help build your affirmative defense, you’ll have a better chance at earning the outcome you desire.

Related Services


Alcohol and Drug Crimes

Financial Crimes

An affirmative defense is different from other criminal defenses in that the defendant admits to committing the crime of which they’ve been accused. The crux of the argument in an affirmative defense case isn’t whether or not the defendant committed the crime, but whether or not they had a legally justifiable reason for doing so. 

Affirmative defenses are usually only used when the defendant concedes that the prosecution is able to prove all elements of the crime beyond a reasonable doubt. The goal of an affirmative defense is to prove to the jury that the defendant had a good reason for following through with the crime. 

Types of Affirmative Defenses 

There are a number of unique circumstances protected by law which can be used as an affirmative defense in a criminal trial. These include: 

Necessity as an Affirmative Defense

Also referred to as “choice-of-lesser-evils,” necessity can be used as an affirmative defense if the defendant feels they were justified in violating the law due to a belief that: 

  1. They were under threat of imminent personal harm or harm to others, 
  2. The only way to prevent said threat(s) was to violate the law, and
  3. The harm caused by violating the law was less severe than the harm the defendant wished to avoid. 

One of the requirements of a necessity affirmative defense is that the defendant did not contribute to or cause the threat of harm themselves. Only when all of these requirements are met can this defense be applicable. Because necessity requires the crime committed to be less severe than the threat of imminent harm, homicide cases do not qualify for using such an affirmative defense. 

Duress as an Affirmative Defense 

Similar to necessity, duress is an affirmative defense that’s typically used when the defendant feels compelled to break the law based on an unlawful threat of imminent death or bodily injury. Again, homicide cases do not qualify for such affirmative defenses as the crime committed outweighs the perceived threat experienced by the defendant. In order to use duress as an affirmative defense, the defendant must be able to prove that they did everything within their means to escape or avoid committing the crime without being harmed. 

Self-Defense as an Affirmative Defense 

The self-defense affirmative defense is used when the defendant has used reasonable force or defensive force in order to protect their life or the lives of others. In certain circumstances, this may include the use of deadly force. 

Self-defense cases can only be established if the defendant is able to prove: 

  1. They were not the aggressor,
  2. They reasonably perceived an immediate threat of bodily harm, 
  3. They reasonably believed that defensive force was necessary to avoid harm, and 
  4. The amount of defensive force used was reasonable for the situation. 

In some cases, the defendant may also need to illustrate that they performed their “duty to retreat” in order to avoid the threat. North Carolina operates under common law, meaning a person is entitle to the right of self-defense and the use of deadly force without having to retreat in any space they lawfully occupy. 

Entrapment as an Affirmative Defense 

Entrapment may be used as an affirmative defense if the defendant feels they were persuaded to commit the crime by a government agent. Usually, this takes the form of an undercover police officer. An entrapment defense is designed to prove that the defendant would not have committed to offense without the involvement of the undercover officer. 

There are two main approaches to entrapment: 

  • Subjective: This prohibits a police officer from instigating a criminal act by people who are NOT predisposed to committing a crime. 
  • Objective: This focuses on whether the government’s conduct in instigating the crime was beyond judicial tolerance. 

Entrapment defenses help discourage law enforcement officials from abusing their positions by persuading people who are normally not disposed to criminal activity into committing a crime. For this reason, entrapment claims are most commonly used when a “victimless crime” has been alleged, such as prostitution or gambling. 

Insanity as an Affirmative Defense 

In order to enter a plea of insanity, there are a number of requirements that must be met. First, the defendant must submit to a variety of evaluations by forensic mental health professionals in accordance with testing guidelines within the jurisdiction for their case. These evaluations are performed to help the professionals determine whether or not the defendant is able to distinguish right from wrong. 

For the majority of insanity defenses, the burden is placed on the defendant, who must be able to prove insanity through clear and convincing evidence. When insanity is being used as an affirmative defense, the defendant must notify the prosecution.

In order to experience the greatest outcome for their case, a criminal defendant must be able to plead their case with specificity or factual particularity. Put simply, this means that the defendant must be able to include specific facts and details when presenting their affirmative defense — not just generalities or feelings. Pleading with specificity and factual particularity ensures that the defendant is telling the complete story of their affirmative defense, including the who, what, where, when, how, and why. 

Why You Need a NC Criminal Defense Lawyer

Building an affirmative defense case is extremely complex in nature — especially when it comes to meeting the requirements to plead with specificity and factual particularity. This is why it’s critical for defendants to request legal assistance from a knowledgeable professional with experience in affirmative defenses. Many laws surrounding affirmative defenses are state-specific, so it’s essential to have an expert legal team that can help you navigate the nuances involved in your criminal defense. 

Choose CMLAW as Your Criminal Defense Attorney

At CMLAW, our criminal defense attorneys have proudly served the needs of North Carolina defendants for more than 20 years. We’ve helped hundreds of clients achieve the most desirable outcome for their cases and are here to help do the same with yours. If you’ve recently been accused of a crime in North Carolina and need help building your affirmative defense, request a consultation with our criminal defense team today!