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Affirmative Defenses – What are they?

Friday / August 30, 2013

Recently the Supreme Court ruled in the case of Smith v. United States regarding affirmative defenses. In the Smith case, Smith sought to overturn his conspiracy conviction based on the fact that he had permanently withdrawn from a conspiracy prior to the commission of the criminal events. Smith stated that his withdrawal from the conspiracy negated an essential element of the criminal conspiracy charge – specifically that he was a participant in the conspiracy.  He argued that his withdrawal required the government to prove beyond a reasonable doubt that he did not withdraw and continued to be a member of the conspiracy. The Supreme Court however, ruled differently.  In opinion written by Justice Scalia the Court acknowledged that the government cannot shift the burden to the defendant when an affirmative defense is asserted.  However withdrawal from a conspiracy case does not constitute an affirmative defense which would then negate an element of the offense.  The court reasoned that if somebody were to withdraw from a conspiracy they are in a sense admitting that they were part of the conspiracy in the first place. Therefore, if they withdrew, they would be not liable for anything that happened after the withdrawal but that they could not then claim to not be part of the conspiracy in the first place.


Although the Smith case was a federal case, Arizona also recognizes affirmative defenses. Some commonly referred to affirmative defenses are self-defense, alibi, and justification type defenses. An affirmative defense is a defense that if proven negates an element of the offense to which the individual is charged. An example of this would be self-defense in a murder case. If self-defense is proven an element of the offense is negated thus not amounting to a criminal act. Affirmative defenses are important to recognize and to assert. If you do not assert affirmative defense in a timely fashion you may be precluded from using them at trial to help you win your case. If you or a loved one is facing criminal charges please give me a call at 480-398-1498 or visit me on the web at

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