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2.9-1 Affirmative Defense
Revised to December 1, 2007
An affirmative defense constitutes a separate issue or circumstance that mitigates the degree of, or eliminates, criminality or punishment. An affirmative defense is one that seeks to justify, excuse or mitigate the act charged.
To prove an affirmative defense, the defendant must establish the defense by a preponderance of the evidence.1 The defendant does not have to prove it beyond a reasonable doubt, as the state has to prove the elements of the crime. Preponderance of the evidence means that after you have considered all the evidence fairly and impartially, you have come to a reasonable belief that what is sought to be proven is more likely true than not true. This means that you take all of the evidence that has been offered on this issue by both the defendant and the state and weigh and balance it. If the better and weightier evidence inclines in the defendant's favor, then the defendant has sustained (his/her) burden of proving (his/her) affirmative defense of <insert affirmative defense> by a preponderance of the evidence.2
If you find that the defendant has
proved the affirmative defense of <insert affirmative defense> by a
preponderance of the evidence, then you must find the defendant not guilty of <insert
offenses to which defense applies>.
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1 General Statutes § 53a-12 (b).
2 See State v. Aviles, 277 Conn. 281, 317 (2006), and State v. Ortiz, 217 Conn. 648, 670 (1991).
Commentary
A defendant is entitled to a
requested instruction on an affirmative defense only "if there is sufficient
evidence for a rational juror to find that all the elements of the defense are
established by a preponderance of the evidence." State v. Person, 236
Conn. 342, 353 (1996) (overruling cases suggesting that the "any evidence"
standard of general defenses applies to affirmative defenses).