In a civil proceeding or

criminal prosecution In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

under the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

or under

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

, a

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

may raise a defense (or defence) in an effort to avert civil liability or 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 an allegation made 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 merely mitigates the liability. The defense phase of a trial occurs after the

prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the

cross-examination In law, cross-examination is the interrogation of a witness by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

during 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 the burden of proof. For example, a defendant who is charged with

assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...

may claim provocation, but they would need to prove that the plaintiff had provoked the defendant.

Common law defenses

, a defendant may raise any of the numerous defenses to limit or avoid liability. These include: * Lack of personal or subject matter jurisdiction of the court, such as

diplomatic immunity Diplomatic immunity is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country.

. (In law, this is not a defense as such but an argument that the case should not be heard at all.) * Failure to state a cause of action or other insufficiencies of pleading. * Any of the

affirmative defense An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's ...

s. * Defenses conferred by statute – such as a

statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...

or the statute of frauds. * '' Ex turpi causa non oritur actio'' – the action against the defendant arises from an illegality. * ''

Volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a Roman legal maxim and common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing ...

'' –

consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions used in such fields as the law, medicine, research, and sexual consent. Consent as understood i ...

by the victim or plaintiff. * '' In pari delicto'' – both sides equally at fault. * Act of God is an unforeseeable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen. * ''Necessity'' harm done to prevent a greater evil is not actionable even though the harm was caused intentionally. * Mistake whether 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 of justification – such as self-defense and defense of others or

defense of property The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property. English law Gener ...

. In

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, one could raise the argument of a ''contramandatum'', which was an argument that the plaintiff had no cause for complaint.

Strategies

The defense in a

homicide Homicide is an act in which a person causes the death of another person. A homicide requires only a Volition (psychology), volitional act, or an omission, that causes the death of another, and thus a homicide may result from Accident, accidenta ...

case 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 of

self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of Force (law), ...

, or in the hope of accomplishing

jury nullification Jury nullification, also known as jury equity or as a perverse verdict, is a decision by the jury in a trial, criminal trial resulting in a verdict of Acquittal, not guilty even though they think a defendant has broken the law. The jury's reas ...

in 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, or legal financing companies. For example, in the United Kingdom, a defendant's legal fees may be covered by legal aid.

Notes

References

External links