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Distinction Between Negative, Affirmative, and Procedural Defenses


When facing criminal charges, it is crucial to retain the services of a skilled defense attorney. A qualified criminal defense attorney can help develop a strong defense strategy. In criminal cases, defenses generally fall into three categories: negative, affirmative, and procedural. The strategy used in your case will depend on the specifics of your case. Every criminal case is different, so the defense strategies used vary from case to case. Even two people facing the exact criminal charges might need different defense strategies. In this article, we look at the difference between negative, affirmative, and procedural defenses.

Negative Defenses

In criminal law, a negative defense is a legal defense that aims to undermine the legal elements or evidence required to prove the prosecution’s case. Negative defenses focus on casting doubt on the validity or sufficiency of the prosecution’s evidence. With negative defenses, the defense side does not need to introduce new evidence or justifications supporting the defendant’s actions.

An example of a negative defense is arguing that the prosecution failed to prove a crucial element of the crime beyond a reasonable doubt or, in other words, claiming insufficient evidence. For instance, in a DUI case, the prosecution must prove that the defendant was operating a motor vehicle and at the time of operating the vehicle, the defendant was under the influence of alcohol or drugs. Both of these elements must be proven beyond a reasonable doubt. If, for example, the prosecution does not have enough evidence to prove that the defendant was under the influence of drugs or alcohol (the second element), there is insufficient evidence to prove DUI beyond a reasonable doubt.

Other common examples of negative defenses include challenging witnesses’ credibility and attacking the chain of custody evidence.

Affirmative Defenses

Usually, affirmative defenses are introduced after the prosecution has managed to prove the alleged facts of the case. With an affirmative defense, the defendant admits the act but presents evidence, which, if proven, will negate criminal liability, even if it is proven that they committed the offense. Affirmative defenses acknowledge that the defendant committed the crime but provide a factual or legal justification for the defendant’s action(s). The following are some of the common affirmative defenses;

  • Self-defense: With this defense, the defendant argues that the action(s) were necessary to protect themselves or others from imminent harm.
  • Entrapment: This defense alleges that law enforcement persuaded or induced the defendant to commit a crime they would otherwise not have committed.
  • Duress: This defense argues that the defendant feared that they or someone else would suffer harm if they did not commit the crime.
  • Insanity: With this defense, the defendant argues that they weren’t mentally capable of comprehending the nature or the consequences of their actions at the time of the crime.

Procedural Defenses

These defenses don’t directly address guilt or innocence. Instead, they focus on the unreliability of procedural errors, violations, or issues that occurred during the legal process. Examples of such defenses include a violation of the defendant’s constitutional rights and prosecutorial misconduct. Prosecutorial misconduct includes actions such as withholding evidence, coercing witnesses, and making improper statements.

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To get help with your criminal case, contact our skilled and dedicated NYC criminal attorney at Mark I. Cohen, Esq.

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