Defense (legal)

For other uses, seeDefence (disambiguation).

"Defence counsel" redirects here. Not to be confused withDefence Council.

In acivil proceedingorcriminal prosecutionunder thecommon lawor understatute,adefendantmay raise adefense(ordefence)in an effort to avert civilliabilityor criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.

Besides contesting the accuracy of anallegationmade against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merelymitigatesthe liability.

The defense phase of atrialoccurs after theprosecutionphase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and thecross-examinationduring the prosecution phase.

Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds theburden of proof.For example, a defendant who is charged withassaultmay claimprovocation,but they would need to prove that the plaintiff had provoked the defendant.

Common law defenses

See also:Category:Equitable defenses

Incommon law,a defendant may raise any of the numerous defenses to limit or avoid liability. These include:

• Lack ofpersonalorsubject matter jurisdictionof the court, such asdiplomatic immunity.(In law, this is not a defense as such but an argument that the case should not be heard at all.)
• Failure to state acause of actionor other insufficiencies ofpleading.
• Any of theaffirmative defenses.
• Defenses conferred by statute – such as astatute of limitationsor thestatute of frauds.
• Ex turpi causa non oritur actio– the action against the defendant arises from an illegality.
• Volenti non fit injuria–consentby the victim or plaintiff.
• In pari delicto– both sides equally at fault.
• Act of Godis an unforseeable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen.
• Necessityharm done to prevent a greater evil is not actionable even though the harm was caused intentionally.
• Mistakewhether of fact or of law is no defence to action.
• The law permits use of reasonable force to protect one's person or property. If force is used for self-defence they will not be liable for harm.
• Unclean hands.

In addition to defenses against prosecution and liability, a defendant may also raise a defense ofjustification– such asself-defense and defense of othersordefense of property.

InEnglish law,one could raise the argument of acontramandatum,which was an argument that the plaintiff had no cause for complaint.

Strategies

The defense in ahomicidecase may attempt to present evidence of the victim's character, to try to prove that the victim had a history of violence or of making threats of violence that suggest a violent character.The goal of presenting character evidence about the victim may be to make more plausible a claim ofself-defense,or in the hope of accomplishingjury nullificationin which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act.

Costs

Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. A defendant can pay with their own money, through legal defense funds, orlegal financingcompanies. For example, in the United Kingdom, a defendant's legal fees may be covered bylegal aid.

See also

• Absolute defense
• Lawsuit
• Legal defense fund
• Legal financing
• Self-defense
• Atturnato faciendo vel recipiendo

External links

• Media related toLegal defensesat Wikimedia Commons