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What is a Colorado Affirmative Defense to a Crime? Understanding a Criminal Defense to a Colorado Criminal Charge

“Affirmative defense” means that unless the state¡¯s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some credible evidence on that issue. If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as to elements of the offense.

A clear illustration of an affirmative defense is self defense. In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another’s use of force was unlawful and that the defendant’s conduct was necessary to protect himself.

However the Defense of “Mistake of fact” is not an affirmative defense: it does not require proof but it does introduce doubt. In mistake-of-fact defenses, the defendant asserts that his mistaken belief prevents the establishment, beyond a reasonable, of the required mens rea. It can be used with other defenses such as self defense. Self defense would still be available even if the defendant mistakenly believes that he was in imminent danger of harmful or offensive bodily contact

I. Legal Groundwork For Affirmative Defenses

A. What is an Affirmative Defense?

An affirmative defense is one which provides a defense without negating an essential element of the crime charge. To establish an affirmative defense the defendant must place before the jury sufficient proof to generate a jury instruction on the particular defense theory sought. Normally, an affirmative defense is expressly designated as affirmative by statute,or is a defense involving an excuse or justification peculiarly within the knowledge of the accused.

B. How is an Affirmative Defense different from a “Regular” Defense?

The presumption of innocence is legally all a defendant needs to be acquitted. The defense is reasonably free to argue the Government has failed to prove any essential element of the crime charge reasonable doubt (BRD) and jury may find a defendant not guilty. This tact does not require the defense to produce any evidence. The judge must instruct the juryon the government¡¯s burden, presumption of innocence, unanimity and proof beyond a reasonable doubt. A defendant is entitled to a theory of defense instruction “as long as it is legally valid and there is sufficient evidence, viewed in the light most favorable to the defendant, to permit a reasonable juror to credit the defendant¡¯s theory.

An affirmative defense is one which requires the actual production of evidence, be it testimonial or physical. The evidence can be adduced through cross examination of Government witnesses or produced after the close of the Government¡¯s case in chief.

Affirmative defenses do not directly attack an element of the crime but provide either justification for the conduct or some other legally recognized approach to undermining the charge. A defendant must generate an affirmative defense instruction.

C. Types of Defenses

There are two categories of defense.

1. I did not do it defenses,

and

2. I did it but defenses.

Affirmative defenses are available in both categories.

1. I Did Not Do It

An alibi defense is an “I did not do it defense.” We could rest there, but with the addition of an alibi we go farther, we show we were elsewhere so could not have done it. The defense has affirmatively chosen to take on the burden of proving the defendant was elsewhere when the crime occurred. If we produce this evidence, then we are entitled to a special or additional jury instruction.

“One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find the defendant not guilty.

If the jury has a reasonable doubt on the defendant¡¯s presence, they MUST find not guilty. If, however they find presence, the jury still must go on to look at each and every element of the offense. With an “I did not do it” affirmative defense, you concede nothing and you strengthen yournot guilty position by giving the jury a specific reason.

2. I Did It But…

Many more affirmative defenses fall into the “I did it but” category. Insanity, entrapment, self defense, necessity, duress, are many of the statutory affirmative defenses. In these situations, there is a major strategic aspect to deciding on the defense. Assertion of the specific affirmative defense essentially concedes that the defendant was involved in the conduct alleged. While the government must still prove each element assertion of many affirmative defenses tells the jury the government is in fact correct as too much of the charge,

BUT, there is a fact or facts which serve to exonerate the conduct. Self defense is an affirmative defense to assault, but by asserting self defense the defendant admits to the assault then gives a legal reason why guilt does not attach to the conduct. If the jury rejects the self defense argument, they are supposed to still find proof BRD of all the elements.

Once you have put on your self defense claim, do you think a jury will spend much time on deciding if assaultive conduct actually occurred? I don¡¯t think so. In an I did it but case, the defense is hanging the whole case on the jury accepting the affirmative defense presented. While there are exceptions to every rule… the strategy employed by the defense lawyer must make sense … realistically how may jurors will accept arguments in the alternative. I did not assault her, but if I did it was in self defense is a weak and ineffective defense and rarely works with a jury.

D. Burdens

The term “affirmative defense” seems inextricably tied to arguments about burden shifting.

Three different burdens exist; burden of proof (always on the government), burden of production (normally on the defense), and burden of persuasion (normally back on the government).

The burden of proof to prove the essential elements of the crime charged BRD starts with and ALWAYS stays with the Government. The burden of production to generate an affirmative defense is on the defense.

This is constitutional because the defense is not negating an essential element of the crime charged. The standard, meaning the quantum of evidence needed, varies with the particular affirmative defense. Generally it is either by a preponderance, or by clear and convincing. Once the defense has met this burden of producing an affirmative defense, the Government has the additional burden of persuading the jury not just as to each element of the crime BRD, but also to persuade the jury to reject the affirmative defense BRD as well.

I. Burden of Proof

Presenting an affirmative defense offers no relief to the government in what they must prove. Rather, if the defense generates an affirmative defense, the government must then disprove the defense generally beyond a reasonable doubt.

Affirmative defenses are the result of the common law merging with statutes and the modern rules of criminal procedure. At common law, the burden of defenses was generally on the defendant. This remained the case at the time the bill of rights was adopted. Fifth and fourteenth amendment jurisprudence have changed common law.

It is now “black letter law” that the government has the burden to prove each and every element of the crime charged beyond a reasonable doubt. This burden never shifts to the defendant who maintains a presumption of innocence throughout the trial.

Generally, if a crime is a specific intent crime, then the government must prove beyond a reasonable doubt that the defendant acted with an improper purpose. An affirmative defense which undermines intent provides a complete defense by undermining an essential element of the charge by the government beyond a reasonable doubt.

It is an unconstitutional shift of the burden if a defendant must prove his innocense by negating an element of the statute.

There remains a distinction between the burden of pleading and burden of proof. If a defense is labeled an “Affirmative Defense” then the government need not plead it, as it is not an element of the offense. It has long been established that “the burden of proof is never upon the accused to establish his innocense, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime. The defendant does have the option, under some circumstances, to introduce evidence to show “affirmatively that he was not criminally responsible for his acts.

ii. Burden of Production

The level of evidence required to generate an affirmative defense, often called the “burden of production” varies with the defense. For some defenses it is by a “preponderance,” (entrapment, while other defenses require “clear and convincing evidence” (normally a statutory requirement,  such as insanity,

Here is a non-exhaustive list of recognized affirmative defenses;

A. Alibi

B. Battered Person Syndrome

C. Duress

D. Entrapment

E. Entrapment by Estoppel

F. Good Faith

G. Impossibility, Factual or Legal

H. Insanity

I. Justification

J. Necessity

K. Outrageous Government Conduct

L. Public Authority

M. Reliance on the Advice of Counsel

N. Self Defense

O. Statute of Limitations

P. Voluntary Intoxication

A. Alibi

The essence of the alibi defense is the impossibility of the defendant¡¯s guilt based on his physical absence from the location of the crime. When alibi is the defense, an alibi instruction must be given when requested. Along with a separate alibi instruction, the court is also required to instruct the jury that the government maintains the burden of establishing beyond a reasonable doubt of the defendant¡¯s presence at the location of the crime.

B. Battered Woman (Person) Syndrome

Battered women’s syndrome is sufficiently recognized by the present state of scientific knowledge to permit the admission of expert opinion testimony on the subject under Rule 702, Fed. R. Evid. U.S. v. Taylor, 820 F. Supp. 124, 127 (S.D. N.Y. 1993). See Arcoren v.United States, 929 F.2d 1235, 1241 (8th Cir. 1991); Fennell v. Goolsby, 630 F. Supp. 451,for additional citations of authority from Federal and State jurisdictions.

Many courts have said battered woman syndrome is not in and of itself a defense. “Battered woman syndrome is not a defense. Nancy Ogle, Comment, Murder, Self-defense, and theBattered Woman Syndrome in Kansas, State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988)], 28 Washburn L. J. 400, 401 (1989).

It is some evidence to be considered to support a defense, such as self-defense, duress, compulsion, and coercion. Because women who suffer from the battered woman syndrome do not act in a typical manner as compared with women who do not suffer from it, evidence of the syndrome is used to explain their behavior. Evidence of the syndrome is presented through expert testimony to assist the jury’s evaluation of the defendant’s state of mind.

Courts have allowed battered woman testimony in specific intent crimes to show lack of intent. But not all court¡¯s allow such testimony,

Some Questions that are raises in the context of the Battered Women¡¯s Syndrome defense are raised by these questions: If you are you attempting to offer expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of guilt”? the law requires a defendant asserting such defense to give particularized notice.

If you are offering the evidence as a compulsion or duress defense? Is the evidence you want to offer relevant ? Under Rule 401, to be relevant, evidence must “relate to a fact that is of consequence to the determination of the action . . .”

C. Coercion and Duress

In assessing whether a defendant has established sufficient grounds to mount a duress defense, courts do not examine the defendant’s subjective perceptions about whether the threat was likely to be acted upon or whether escape was possible. Rather, as suggested by our use of the qualifiers “well-grounded” and “reasonable” in describing the elements of the defense, the inquiry hypothesizes a defendant of ordinary firmness and judgment and asks what such a defendant was likely to have experienced or how such a defendant was likely to have acted.

It is generally recognized that a defendant can lose a duress defense by his own fault in getting into the difficulty. Thus, . . . the duress defense is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to duress.

Duress requires a showing of: (1) an immediate threat of death or serious bodily injury; (2) a well founded fear that the threat will be carried out, and (3) the lack of a reasonable opportunity to escape the threatened harm.

D. Entrapment

Entrapment is called a defense, but once the defendant has made a threshold showing, the burden shifts to the government to prove beyond a reasonable doubt either that there was no undue government pressure or trickery or that the defendant was predisposed.

The legal tests for entrapment are well established. What is required is:

a. that the government induces the offense, and

b. that the defendant not be predisposed to commit it.

Although the entrapment doctrine is primarily concerned with curbing improper pressure by the government, a competing policy has led to the second requirement, namely, that the defendant also not be predisposed to commit the crime. The notion is that a defendant predisposed to commit the crime should not be relieved of responsibility “merely because the government gave the defendant too forceful a shove along a path that the defendant would readily have taken anyway” asks whether defendant would have been likely to commit the same crime without the undue pressure actually exerted.

There is no defense of private entrapment, although some courts have allowed a claim of “derivative entrapment” in which the government uses a private party as its agent.

E. Entrapment by Estoppel

Entrapment by estoppel is an affirmative defense and the burden is on the defendant to produce sufficient evidence to support a jury instruction on the defense. Entrapment b st y estoppel requires the defendant to establish (1) that a government official told him the act was legal; (2) that he relied on the advice; (3) that the reliance was reasonable; and (4) that, given the reliance, prosecution would be unfair.

The relied upon statement by the government agent must be made to the defendant, not to a third party.  Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official.” Id. Because the defense of entrapment by estoppel “rests upon principles of fairness . . . it may be raised even in strict liability offense “Ignorance of the law is no 3 excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.”, Thomas Jefferson, Letter to Andre Limozin, 22 Dec. 1787, in Papers of Thomas Jefferson 12:451 (Julian P. Boyd ed. 1955) cases.” Id. To disallow such a defense to be presented “would be to sanction an indefensible sort of entrapment by the State.”

F. Good Faith

The defense of good faith is a difficult one in part due to the well recognized maxim, “ignorance of the law is no defense” Good faith can only be used in a specific intent crime and is used primarily in tax and financial fraud cases. Some courts hold that an adequate specific intent instruction is enough. Good faith is inconsistent with an intent to defraud. Good faith is also inconsistent with an intent to obtain money or property by means of false and fraudulent pretenses or representations. The term “good faith” has no precise definition. However,”good faith” means among other things, a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid taking unfair advantage of another.

Evidence of good faith can create a reasonable doubt that Defendant violated the crime charged. It is important to bear in mind that Defendant has no burden to prove good faith.

G. Impossibility, Factual or Legal

The distinction between factual and legal impossibility has been described as “elusive at best.

H. Insanity

For an insanity jury instruction, the defendant must generate sufficient evidence to allow a reasonable jury to find that insanity has been established with “convincing clarity”.

The court is not required to instruct the jury regarding the consequences to the defendant of not guilty only by reason of insanity. Hence, as a general rule, the defense will not be able to let the jury know about the civil commitment process which will result from an NGRI finding. The Shannon decision leaves a small opening for circumstances in which the government might open the door such as a government argument during closing that a defendant would “go free” if a jury returned an NGRI verdict.

I. Justification

Three circuit courts have explicitly considered whether the prosecution or the defense bears the burden of proof on a justification defense to a felon in possession charge and they have reached different conclusions. 

J. Necessity

The necessity defense is available “when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greaterevil.” The theory underlying the necessity defense is that the defendant’s free will was properly exercised to achieve a greater good or avoid a greater harm. This differs from a duress defense which requires that a defendant¡¯s free will be overcome by an outside force.

To establish a defense of necessity, a defendant must, as a matter of law, establish the existence of four elements: “(1) that he was faced with a choice of two evils and he chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his or her conduct and the harm to be avoided; and (4) that there were no legal alternatives to violating the law.

The defense has been denied as to political protesters and civil disobedience.

K. Outrageous Government Conduct

Under the outrageous government conduct defense, a defendant argues that the government’s involvement in creating his crime (i.e., the means and degrees of inducement) was so great “that a criminal prosecution for the [crime] violates the fundamental principles of due process.”may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction” The defendant must establish that the police misconduct rises to the level of a constitutional violation. The outrageous government conduct defense is distinct from the affirmative defense of entrapment, which requires the defendant to establish that he was not predisposed to commit the crime. Under the outrageous government conduct defense, conviction may be improper even if the evidence establishes a predisposition to commit the crime: this defense looks only at the government’s conduct and determines whether it is sufficiently outrageous so as to violate the Constitution.

The defense is premised on the Due Process Clause which imposes limits upon how far the government may go in detecting crime, regardless of the character of the target.

L. Public Authority

Under the public authority defense, the defendant says that his actions were taken under color of public authority.

M. Reliance on the Advice of Counsel

Similar to a good faith defense, a defendant may be excused from wrongdoing if he or she acted on the basis of advice from his or her attorney.

To rely on the advice of counsel defense, the defendant must show that: (1) before taking action, (2) he in good faith sought the advice of an attorney whom he considered to be competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts which the defendant knew, (5) and acted strictly in accordance with the advice of his attorney who had been given a full report.

It is not for the judge, but rather for the jury, to ¡®appraise the reasonableness or the unreasonableness of the evidence¡¯ relative to a reliance theory, as to hold otherwise would be tantamount to a grant of partial summary judgment to the Government in a criminal case.

N. Self Defense

Use of force is justified when a person reasonably believes that it is necessary for the defense of self or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances.

O. Statute of Limitations

The statute of limitations defense goes not to jurisdiction of the court, but is an affirmative defense which must be raised or waived. Once raised, if the evidence presents a conflict as to whether the offense occurred within the limitations period or not, it is for the jury to decide on the validity of the statute of limitations defense raised.

P. Voluntary Intoxication

Voluntary intoxication may rebut proof of intent in a “specific intent” crime. Voluntary intoxication is not a defense to general intent crimes.

This article addresses only general affirmative defenses and affirmative defenses to specific crimes. Only statutory affirmative defenses are set forth in this chapter. There may be other, non-statutory affirmative defenses. Although the defense of voluntary intoxication has been deemed not to be an “affirmative defense” by the Colorado Supreme Court in People v. Harlan, 8 P.3d 448 (Colo. 2000), it has been included in this chapter.

COLORADO AFFIRMATIVE DEFENSES

Every AFFIRMATIVE DEFENSE consists of it¡¯s elements. What follows are the key Colorado Criminal Affirmative Defenses as they are given to the jury.

As stated – if the Defendant raises a valid affirmative defense at trial, in addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

EFFECT OF IGNORANCE OR MISTAKE UPON CULPABLITY (MISTAKEN BELIEF)¡¡

It is an affirmative defense to the crime of _________________ that the defendant engaged in the prohibited (insert name of crime) conduct under a mistaken belief, and due to this mistaken belief by the defendant he did not form the particular mental state required in order to commit the offense. In

EFFECT OF IGNORANCE OR MISTAKE UPON CULPABILITY (MISTAKEN BELIEF, LAW)

It is an affirmative defense to the crime of ________________________ that the defendant engaged in the prohibited (crime) conduct under a mistaken belief that the conduct did not constitute the crime, only if such conduct is permitted by: [A statute or ordinance binding in this state]

CONSENT OF VICTIM

It is an affirmative defense to the crime of (insert name of crime) that the victim consented, if [the consent negates an element of that offense] [the consent precludes the infliction of the harm or evil sought to be prevented by the law defining that offense].

CONSENT OF VICTIM (OFFENSES INVOLVING BODILY INJURY OR THREAT OF BODILY INJURY)

It is an affirmative defense to the crime of (insert name of crime) that the victim consented, if [the bodily injury consented to or threatened by the conduct consented to is not serious] [the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport].

DEFENDANT AS VICTIM OR INCIDENTAL ACTOR

It is an affirmative defense to the crime of (insert name of crime), that:

1. the behavior of another constitutes an offense, and

2. [the defendant is a victim of that offense][the defendant¡¯s conduct is inevitably incidental to the commission of that offense].

WARNING TO LAW ENFORCEMENT AUTHORITY OR VICTIM

It is an affirmative defense to the crime of_(insert name of crime)_ that, prior to the commission of that offense, the defendant terminated [his][her] effort to promote or facilitate its commission and either gave timely warning to law enforcement authorities or gave timely warning to the intended victim.

CHOICE OF EVILS

It is an affirmative defense to the crime of ( name of crimes) that the conduct engaged in by the (insert name of crime) defendant was:

1. necessary as an emergency measure to avoid an imminent public or private injury,

2. which was about to occur because of a situation occasioned or developed through no conduct of the defendant, and

3. which was of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweighed the desirability of avoiding the injury sought to be prevented by the statute defining (insert name of crime)

DURESS

It is an affirmative defense to the crime of (insert name of crime) that:

1. the defendant engaged in the prohibited conduct at the direction of another,

2. because of the use or threatened use of unlawful force upon him or upon another person,

3. which a reasonable person in the defendant¡¯s situation would have been unable to resist, and

4. the defendant did not intentionally or recklessly place himself in a situation where it was foreseeable that he would be subjected to such force or threatened use thereof.

ENTRAPMENT

It is an affirmative defense to the crime of (insert name of crime) that the defendant engaged in such conduct because he was entrapped. The defendant was entrapped if:

1. the defendant would not have conceived of or engaged in the offense unless the inducement was offered,

2. the defendant engaged in the offense because he was induced to do so by a law enforcement official or any person acting under their direction, and not as a result of the defendant¡¯s own predisposition,

3. the methods used created a substantial risk that this particular defendant would engage in the offense, and

4. the methods used were more persuasive than merely affording the defendant an opportunity to commit the offense, even if representations or inducements were made to overcome the defendant¡¯s fear of detection.

INTOXICATION – VOLUNTARY

You may consider evidence of self-induced intoxication in determining whether or not such intoxication negates the existence of the element(s) of [with intent] [after deliberation and with intent] [intentionally].

The prosecution has the burden of proving all the elements of the crimes charged beyond a reasonable doubt. If you find the defendant was intoxicated to such a degree that s/he did not have the mental state of [with intent] [after deliberation and with intent] [intentionally] whichis a required element of the crime(s) of (insert name(s) of specific intent crime(s), you should find the defendant not guilty of [those] [this] charge(s).

INTOXICATION – INVOLUNTARY

It is an affirmative defense to the crime of (insert name of crime) that the defendant lacked the capacity to conform his conduct to the requirements of the law because of intoxication that was not self-induced.

This instruction can only be used when there has been evidence introduced that the intoxication was not selfinduced.In all other situations concerning intoxication, the previous instruction is the only instruction applicable.

THE MANY FORMS OF  COLORADO SELF DEFENSE

USE OF PHYSICAL FORCE ¨C SPECIAL RELATIONSHIPS

It is an affirmative defense to the crime of ___________________ (insert name of crime) that the defendant used physical force under any of the following circumstances:

[A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person] [A teacher or other person entrusted with the care and supervision of a minor] may use reasonable and appropriate physical force upon the minor [or incompetent person] when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor [or incompetent person].

-or-

USE OF PHYSICAL FORCE – DEFENSE OF PERSON ( TRADITIONALLY RECOGNIZABLE SELF DEFENSE)

It is an affirmative defense to the crime of_(insert name of crime)_that the defendant used physical force upon another person:

1. in order to defend himself or a third person from what he/she reasonably believed to be the use or imminent use of unlawful physical force by the victim, and

2. he/she used the degree of force which he/she reasonably believed to be necessary for that purpose.

Note: The defendant is not required to retreat in order to claim the right to employ force in his/her defense.

USE OF PHYSICAL FORCE NOT JUSTIFIED: PROVOCATION

 

The defendant is not justified in using physical force if:

1. with intent to cause bodily injury or death to another person,

2. he/she provoked the use of unlawful physical force by that person.

USE OF PHYSICA FORCE NOT JUSTIFIED: INITIAL AGGRESSOR 

The defendant is not justified in using physical force if he/she is the initial aggressor, except that his use of physical force under the circumstances is justifiable if:

1. he/she withdraws from the encounter, and

2. effectively communicates to the other person his/her intent to withdraw, and

3. the other person continues or threatens the use of unlawful physical force.

USE OF PHYSICAL FORCE NOT JUSTIFIED: COMBAT BY AGREEMENT

 

The defendant is not justified in using physical force if:

1. the physical force involved is the product of combat by agreement, and

2. the combat is not specifically authorized by law.

USE OF PHYSICAL FORCE-DEADLY PHYSICAL FORCE (IMMINENT DANGER OF DEATH OR SERIOUS BODILY INJURY BY VICTIM)

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4. had reasonable grounds to believe, and did believe, that he or another person was in imminent danger of being killed or of receiving great bodily injury.

The Colorado ” Retreat to The Wall” Law:

The defendant is not required to retreat in order to claim the right to employ force in his/her defense.

USE OF PHYSICAL FORCE – DEADLY PHYSICAL FORCE (COMMISSION OF KIDNAPPING/ROBBERY/SEXUAL ASSAULT/ASSAULT FIRST OR SECOND DEGREE BY VICTIM)

It is an affirmative defense to the crime of _________________________ that the defendant used deadly (Insert name of crime) physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4. _______________ was committing or reasonably appeared(Insert name of victim)to be about to commit [kidnapping] [robbery] [sexual assault] [assault in the first degree] [assault in the second degree].

Note: The defendant is not required to retreat in order to claim the right to employ force in his/her defense.

USE OF PHYSICAL FORCE-DEADLY PHYSICAL FORCE (FORCE AGAINST OCCUPANT/BURGLARY

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4._(Insert name of victim)_ was using or reasonably appeared to be about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary.

Note” The defendant is not required to retreat in order to claim the right to employ force in his/her defense.

USE OF PHYSICAL FORCE IN DEFENSE OF PREMISES – Colorado¡¯s “Make My Day” Law

It is an affirmative defense to the crime of (insert name of crime) that the defendant:

1. was in possession or control of any building, real estate, or other premises, or was licensed or privileged to be thereon, and

2. used reasonable and appropriate physical force upon another person,

3. to prevent or terminate what he reasonably believed to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, real estate, or premises.

USE OF DEADLY PHYSICAL FORCE IN DEFENSE OF PREMISES

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force because:

1. he reasonably believed it necessary to prevent

2. what he reasonably believed to be an attempt by a trespasser to commit first degree arson.

USE OF DEADLY PHYSICAL FORCE AGAINST AN INTRUDER

It is an affirmative defense to the crime of _________________________ (insert name of crime) that the defendant used physical force, including deadly physical force, against another person,

1. while the defendant was an occupant of a dwelling, and

2. the other person made an unlawful entry into that dwelling, and

3. the defendant had a reasonable belief that the other person had committed, was committing, or intended to commit a crime in the dwelling in addition to the uninvited entry,

and

4. the defendant reasonably believed the other person might have used any physical force, no matter how slight, against any occupant of the dwelling.

Note: The defendant is not required to retreat in order to claim the right to employ force in his/her defense.

USE OF PHYSICAL FORCE IN DEFENSE OF PROPERTY

It is an affirmative defense to the crime of (insert name of crime) that the defendant

1. used reasonable and appropriate physical force upon another person

2. when and to the extent that he reasonably believed it necessary to prevent

3. what he reasonably believed to be an attempt by the other person to commit [theft] [criminal mischief] or [criminal tampering involving property].

AFFIRMATIVE DEFENSES TO SPECIFIC OFFENSES

CRIMINAL ATTEMPT-ABANDONING EFFORT

It is an affirmative defense to the crime of criminal attempt that the defendant abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting the complete and voluntary renunciation of his criminal intent.

CONSPIRACY-ABANDONING

It is an affirmative defense to the crime of conspiracy that the defendant abandoned the conspiracy by:

1. [giving timely notice of his abandonment,

2. to those with whom he conspired, and

3. such notice was evidenced by circumstances corroborating the giving of the notice].

¡ªor¡ª

1. [informing the law enforcement authorities having jurisdiction,

2. of the existence of the conspiracy and of his participation therein].

CONSPIRACY-RENUNCIATION OF CRIMINAL PURPOSE

It is an affirmative defense to the crime of conspiracy that the defendant, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.

CRIMINAL SOLICITATION-OBJECT ACHIEVED

It is an affirmative defense to the crime of criminal solicitation that, if the criminal object was achieved, [the defendant would be the sole victim of the crime] [the crime is so defined that the defendant¡¯s conduct would be inevitably incident to its commission or he otherwise would not be guilty under the statute defining the crime].

CRIMINAL SOLICITATION-PREVENT COMMISSION

It is an affirmative defense to the crime of criminal solicitation that the defendant, after soliciting another person to commit (insert name of felony), persuaded him not to do so, or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of the defendant¡¯s criminal intent.

AFFIRMATIVE DEFENSE ¨C COMPLICITY

It is an affirmative defense to complicity to commit ________________________ that:(insert name of crime(s))

1. Prior to the commission of the offense,

2. the defendant terminated his effort to promote or facilitate its commission, and

3. [gave timely warning to law enforcement authorities] or [gave timely warning to the intended victim].

OBSTRUCTING GOVERNMENTAL OPERATIONS

It is an affirmative defense to the crime of obstructing governmental operations that the obstruction, impairment, or hindrance was [of unlawful action by a public servant [of the making of an arrest] [by lawful activities in connection with a labor dispute with the government].

PERJURY-RETRACTION

It is an affirmative defense to the crime of perjury in the first degree that the defendant retracted his false statement during the same proceeding in which it was made. Statements made in separate hearings at separate stages of the same trial or administrative proceedings shall be deemed to have been made during the same proceeding.

UNLAWFULLY CARRYING A CONCEALED WEAPON (OWN PROPERTY OR AUTOMOBILE)(PERMIT)

It is an affirmative defense to the crime of unlawfully carrying a concealed weapon that the defendant was

1. [in his own dwelling or place of business, or on property owned or under his control at the time of the act of carrying.]

¡ªor¡ª

[in a private automobile or other private means of conveyance, and

2. carried a weapon for lawful protection of his or another¡¯s person or property,

3. while traveling.]

¡ªor¡ª

1. [had been issued a written permit to carry the weapon, by the chief of police of a city or city and county, or the sheriff of a county,

2. prior to the time of carrying a concealed weapon.]

NON-JUSTIFIABLE USE OF PHYSICAL FORCE: This is Colorado¡¯s “Initial Aggressor” exception to the Justifiable Use of Physical Force

A person is not justified in using physical force if [with intent to cause bodily injury or death to another person, he provoked the use of unlawful physical force by that person] [he was the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force] [the physical force involved was the product of a combat by agreement not specifically authorized by law.



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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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