When to ask for affirmative defense

As the Supreme Court prepares to hear arguments in its case on affirmative defense of racial discrimination, there are still some questions that need answering.

What affirmative defense is?

In some states, affirmative defense means the accused is entitled to the protection of the law.

In other states, it means the accuser must prove his or her innocence.

In both cases, the accused may be eligible for a lesser penalty.

Does the accused have to prove his innocence?


The accused may prove his guilt through direct testimony or through a combination of both direct and circumstantial evidence.

Direct evidence may include a written statement, an audio recording, or other evidence, or it may be based on other evidence that can be established through direct or circumstantal evidence.

If direct evidence cannot be established by direct or indirect evidence, it must be inferred.

The evidence must be circumstantially proven.

If it is circumstantelty, it can only be inferred from the totality of the circumstances of the case.

It must not be proved conclusively.

Does the accuser have to show that he was racially discriminated against?


The accuser is entitled only to a reasonable belief that he or she was racially defamed.

There is no “actual malice” required for an affirmative defense.

The accuser’s only defense is that he acted in a reasonable way to avoid the prejudice or harassment.

How often does affirmative defense need to be argued?

There is no specific rule on the number of times an affirmative defence must be argued.

However, the court will hear an affirmative case in the first instance only if there is a reasonable probability that it will be sustained.

Should the accused plead guilty, the burden of proof is on the prosecution to prove that the accused did not know the truthfulness of his statements.

Can an affirmative action be used in the criminal context?

Yes, affirmative defenses can be used to protect against racial bias in criminal cases.

In some states that allow affirmative defense for racial discrimination or in civil rights cases, affirmative defence can be argued in criminal proceedings.

In civil rights and other cases, a jury may decide the facts in the case based on the evidence presented in the affirmative defense in addition to any evidence presented by the accuser.

Are affirmative defense and guilty pleas part of the criminal justice system?

Yes they are.

Criminal justice systems around the country have used affirmative defense as a defense in criminal and civil rights prosecutions.

However this defense has been criticized for being too weak.

Does affirmative defense automatically mean the accused will be acquitted?

Yes the accused must prove that he has a reasonable basis for believing that the accusation was false or is false.

The accused has no obligation to prove the truth of his accusation unless he is absolutely certain of his innocence.

Is there a legal requirement to be able to prove your innocence?

Not all cases will require an affirmative decision to be rendered.

Some cases will not require affirmative defense at all.

What happens if the accused makes a false accusation?

If the accused cannot prove that his accuser is innocent, he must be found guilty.

The defendant must be sentenced to a penalty that meets the punishment prescribed in the law, even if the accuser does not know that the defendant committed the offense.

Is an affirmative trial the same as a guilty verdict?

The answer to that question depends on the facts and circumstances of each case.

In a criminal trial, the defendant is not guilty unless he has been found guilty and sentenced to death.

If the defendant cannot be found liable for a crime committed by an accused, then the accused has been acquitted.

Can a guilty plea be entered into evidence against a defendant?

Yes if the prosecutor asks the accused to enter a guilty pleas.

If there is no guilty plea, the prosecutor must prove beyond a reasonable doubt that the suspect committed the crime by a preponderance of the evidence.

What is a pre-conviction hearing?

A pre-court hearing is when a prosecutor or defense attorney asks the defendant to enter into a plea of guilty to a charge, offer evidence that the crime was committed by the accused, or provide additional information to support his plea.

A pre-trial hearing does not have to be conducted at the defendant’s home or in a courthouse.

In most cases, pre-filing motions are required in the prosecution’s case.

What are the procedural rules of the prosecution?

Prosecutors have the right to call witnesses and cross-examine the defendant.

There are also rules that govern the appearance of witnesses.

A defendant is also entitled to have his attorney present to cross-question the witnesses.

In order to cross examine the witness, the attorney must stand behind the witness and give his or the defendant a reasonable opportunity to present the defendant with all the relevant evidence.

Who can question the witness?

A defendant is entitled, at his own expense, to the assistance of his attorney to present to the court all the evidence he can reasonably obtain.

The attorney has the right at any time to present his or his client’s evidence in any manner he chooses. What is a

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