Understanding Colorado Affirmative Criminal Defenses – General Defenses – and Defenses to Specific Crimes
By H. Michael Steinberg – Colorado Criminal Defense Lawyer – Attorney – Email Him at [email protected]
Understanding Colorado Affirmative Criminal Defenses – General Defenses – and Defenses to Specific Crimes means having an understanding of the nature of an affirmative defense and then applying it to the charges in your case.
First – What Is A Colorado Affirmative Defense – §18-1-407, C.R.S.
An affirmative defense provides a legal justification for otherwise criminally culpable behavior. A defendant who asserts an affirmative defense admits the doing of a charged act, but seeks to justify the act on grounds deemed by law to be sufficient to avoid criminal responsibility.
An “affirmative defense” means that the defendant’s Colorado criminal defense lawyer seeks to introduce some credible evidence involving the alleged defense. Examples are cross examination of the alleged victim about who was the aggressor in a bar fight, or in a sex assault case – evidence that the alleged victim consented to the sexual act allleged and was not forced into that act or acts.
Simply put – a defendant at trial must present some credible evidence on the issue.If the evidence is found to raise the affirmative defense, this adds an additional burden to the prosecutor’s case. After the defense is successfully raised, then the guilt of the defendant must be established beyond a reasonable doubt as to the original crime AND as to defense raised by the defendant.
Once again , if successfully raised, the district attorney, in addition to proving all of the elements of the crime charged beyond a reasonable doubt, must also disprove the affirmative defense beyond a reasonable doubt.
This Article Explores Some of the Most Common “General” Affirmative Defenses And Specific Affirmative Defenses To Specific Crimes
All crimes are broken down into their fundamental elements for the jury in what are called “jury instructions.” If an affirmative defense is successfully raised at trial – the jury instructions contain the following language:
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.
After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.
The Best Way To Understand Colorado Affirmative Defenses
The best way to understand a specific affirmative defense is to break it down into it’s elements.
What follows are the majority of Colorado affirmative defenses reduced to their elements – precisely as the jury would receive them at a Colorado criminal trial.
Effect of Ignorance or Mistake Upon Culpability (Mistaken Belief)
It is an affirmative defense to the crime of [specific crime charged] that the defendant engaged in the prohibited 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.
Effect of Ignorance or Mistake Upon Culpability (Mistaken Belief, Law) – §§18-1-504 (2) and (3) C.R.S.
It is an affirmative defense to the crime of [specific crime goes here] that the defendant engaged in the prohibited 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]
– [an administrative regulation, order, or grant of permission by a body or official authorized and empowered to make such order or grant the permission under the laws of the state of colorado]
– [an official written interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting such statute, ordinance, regulation, order, or law. If such interpretation is by judicial decision, it must be binding in the state of colorado.
The Consent of A Victim – §18-1-505(1) and (4),C.R.S.
It is an affirmative defense to the crime of [example – sex assault crimes] 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) §18-1-505(2),C.R.S.
It is an affirmative defense to the crime of [specific crime charged] 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 – §18-1-604(1),C.R.S.
[HMS – This instruction should be given only in cases where the defendant’s criminal liability is based upon the behavior of another.]It is an affirmative defense to the crime of [specific crime charged] that:
1. the behavior of another constitutes an offense, and
2. [the defendant is a victim of that offense] OR [the defendant’s conduct is inevitably incidental to the commission of that offense].
Warning to Law Enforcement Authority or Victim – §18-1-604(2),C.R.S.
It is an affirmative defense to the crime of [specific crime charged] 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.
The Choice Of Evils Affirmative Defense – §18-1-702,C.R.S.
[HMS – The choice of evils defense is applicable when the alleged crime was necessary as an emergency measure to avoid an imminent public or private injury that is about to occur by reason of a situation occasioned or developed through no conduct of the actor and which is of sufficient gravity to outweigh the criminal conduct. Section 18-1-702(1),C.R.S.2003.A defendant must offer proof of the sudden and unforeseen emergence of a situation requiring his or her immediate action to prevent an imminent injury.
BUT a defendant who has a reasonable legal alternative as a means to avoid the threatened injury is foreclosed from asserting a choice of evils defense. AND a defendant who seeks to assert a choice of evils defense must offer evidence that the criminal conduct at issue did not exceed that reasonably necessary to avoid the impending injury.
It is an affirmative defense to the crime of [specific crime charged] that the conduct engaged in by the 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 [the crime].
The Affirmative Defense of Duress – §18-1-708,C.R.S.
It is an affirmative defense to the crime of [specific crime charged] 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.
The Affirmative Defense of Entrapment – §18-1-709,C.R.S.
It is an affirmative defense to the crime of [specific crime charged] that the defendant engaged in such conduct because he was entrapped.
A 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.
Voluntary Intoxication – Specific Intent Crimes Only (such as premeditated crimes)
You may consider evidence of self-induced intoxication in determining whether or not such intoxication negates the existence of the element of:
– [with intent]
or
– [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] which is a required element of the crime(s) of [specific crime charged],
…you should find the defendant not guilty of (insert name(s) of specific intent crime(s) [those] [this] charge(s).
[HMS – This defense does not apply to general intent – not premeditated crime(s)]The Affirmative Defense Of Involuntary Intoxication – §18-1-804(1) (3),C.R.S.
It is an affirmative defense to the crime of [a general intent 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.
Understanding Colorado Self Defense Laws – Affirmative Defenses
Use of Physical Force – Self – Defense of Person – §18-1-704(1), C.R.S..
It is an affirmative defense to the crime of 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.
[HMS – a person is not required to retreat in order to claim the right to employ force in his/her defense.]
A a person 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.]
A person 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.]
A person 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.
This affirmative defense is subject to the provisions of §§18-1-704(2) and (3),C.R.S.., the following instruction on deadly physical force, and the special rule(s) on non-justifiable use of physical force.
Non-Justifiable Use of Physical Force – §18-1-704,C.R.S..
[HMS – This instruction is used where there is a question as to whether the victim is the initial aggressor, or in situations where the defendant is claiming his/her use of force is lawful in response to the victim’s actions.A person is not justified in using physical force if:
1. [with intent to cause bodily injury or death to another person, he provoked the use of unlawful physical force by that person]
2. [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]
3. [the physical force involved was the product of a combat by agreement not specifically authorized by law.
Use of Physical Force – Deadly Physical Force – §18-1-704 C.R.S..
Imminent danger of death or serious bodily injury by victim…
It is an affirmative defense to the crime of (specific crime charged) that the defendant used deadly physical force because:
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.
[HMS – A person is not required to retreat in order to claim the right to employ force in his/her defense.]A person 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.
[HMS – a person is not justified in using physical force if he/she is the initial aggressor, except that his/her 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.
[HMS – a person 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 (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 physical force because:
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. (Name of Victim) was committing or reasonably appeared to be about to commit [kidnapping] [robbery] [sexual assault] [assault in the first degree] [assault in the second degree].
[HMS – a person is not required to retreat in order to claim the right to employ force in his/her defense.]The Affirmative Defense To the Crime Of Use of Physical Force – Deadly Physical Force (Force Against Occupant/Burglary) – §18-1-704 C.R.S..
It is an affirmative defense to the crime of (specific crime charged) that the defendant used deadly physical force because:
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. 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.
[HMS – a person is not required to retreat in order to claim the right to employ force in his/her defense.]The Affirmative Defense To the Crime Of Use of Physical Force in Defense of Premises- §18-1-705,C.R.S..
It is an affirmative defense to the crime of (specific crime charged) 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.
The Affirmative Defense To the Crime Of Use of Deadly Physical Force In Defense of Premises
It is an affirmative defense to the crime of (specific crime charged) 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.
The Affirmative Defense To the Crime Of Use of Deadly Physical Force Against an Intruder
It is an affirmative defense to the crime of (specific crime charged) that the defendant used physical force, including deadly physical force, against another person, that:
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.
[HMS – a person is not required to retreat in order to claim the right to employ force in his/her defense.]The Affirmative Defense To the Crime Of Physical Force in Defense of Property – §18-1-704.5,C.R.S.. – §18-1-706,C.R.S..
It is an affirmative defense to the crime of (specific crime charged) 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 – 18-2-101(3),C.R.S..
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 – The affirmative Defense Of Abandoning The Crime – §18-2-204(3),C.R.S..
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].
-or-
1. informing the law enforcement authorities having jurisdiction,
2. of the existence of the conspiracy and of his participation therein
The Affirmative Defense To the Crime Of Conspiracy – Renunciation of Criminal Purpose – §18-2-203,C.R.S..
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.
The Affirmative Defense To the Crime Of Criminal Solicitation – Object Achieved – §18-2-301,C.R.S..
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].
The Affirmative Defense To the Crime Of Criminal Solicitation – Prevent Commission – §18-2-301(4),C.R.S..
It is an affirmative defense to the crime of criminal solicitation that the defendant, after soliciting another person to commit (specific crime charged), 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.
The Affirmative Defense – Complicity – Accomplice Liability §18-1-604(2)C.R.S..
It is an affirmative defense to complicity to commit (specific crime charged) that:
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].
The Affirmative Defense To the Crime Of False Imprisonment Questioning of Person Suspected of Theft Without Liability – §18-4-407,C.R.S.
It is an affirmative defense to the crime of false imprisonment that:
1. (The suspect) concealed upon his person or otherwise carried way any unpurchased goods, wares, or merchandise held or owned by any store or mercantile establishment, and
2. the defendant, acting in good faith and upon probable cause based upon reasonable grounds therefor,
3. detained and questioned (the suspect) in a reasonable manner,
4. for the purpose of ascertaining whether (the suspect) was guilty of theft.
The Affirmative Defense To the Crime Of Violation of Custody Charges – §18-3-304(3), C.R.S.
It is an affirmative defense to the crime of violation of custody that:
[the defendant reasonably believed that his conduct was necessary to preserve the child from danger to its welfare.]
-or-
1. [the child was at the time more than fourteen years old, and
2. was taken away,
3. at the child’s own instigation,
4. without enticement, and
5. the defendant had no purpose to commit a crime with or against the child.]
Affirmative Defense To Criminality of Conduct – Age of Victim – §18-3-406,C.R.S..
It is an affirmative defense to the crime of (specific crime charged) that the defendant reasonably believed the child to be eighteen years of age or older and such child was at least fifteen years of age.
[HMS – This instruction is ONLY when the criminality of a sex offense depends upon the victim being a child under the age of 18.]The Affirmative Defense To the Crime Of Compounding – Belief Amount Due Defendant – §18-8-108(2),C.R.S..
It is an affirmative defense to the crime of compounding that the benefit received by the defendant did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime.
The Affirmative Defense To the Crime Of Perjury – Retraction – §18-8-508,C.R.S..
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.
The Affirmative Defense To the Crime Of Use Of A Knife – Hunting or Fishing – 18-12-101(1)(f),C.R.S..
It is an affirmative defense to the crime of (specific weapons charges) that the knife in possession of the defendant was a hunting or fishing knife carried for sports use.
This affirmative defense is for use only against violations of §18-12-105(1) (a), C.R.S.., unlawfully carrying a concealed weapon, and § 18-12-108, possession of weapons by previous offenders.
The Affirmative Defense To the Crime Of Use Unlawfully Carrying a Concealed Weapon (Own Property or Automobile) (Permit) – §18-12-105(2),C.R.S..
It is an affirmative defense to the crime of unlawfully carrying a concealed weapon that the defendant was
[in his own dwelling or place of business, or on property owned or under his control at the time of the act of carrying.]
-or-
[1. 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.]
-or-
[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.]
The Affirmative Defense To the Crime Of Possession of Weapon by Previous Offender Purpose
It is an affirmative defense to the crime of possession of weapons by a previous offender that the defendant possessed the weapon for the purpose of defending his [home] [person] [property].
The Affirmative Defense To the Crime Of Use Disorderly Conduct – Provocation – §18-9-106(2), C.R.S
This is an affirmative defense to a charge of disorderly conduct as defined in §18-9-106(1)(b),C.R.S..
The Affirmative Defense To the Crime Of Libel – Truth of Statement – §18-13-105(2), C.R.S..
It is an affirmative defense to the crime of libel that the statement published was true.
This affirmative defense does not apply to libels tending to blacken the memory of the dead, to expose the natural defects of the living.
Understanding Colorado Affirmative Criminal Defenses – General Defenses – and Defenses to Specific Crimes
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving .. Understanding Colorado Affirmative Criminal Defenses – General Defenses – and Defenses to Specific Crimes.
Other Articles of Interest:
- The Most Common Defenses Asserted At Trial
- Common Defenses To Colorado Criminal Charges – The Affirmative Defense Of Duress
- Common Defenses To Colorado Criminal Charges
- Colorado Criminal Law and Defenses – Understanding the Defense of Entrapment
- Colorado Criminal Law Defenses – The Defense of Mistakes of Law and Mistake of Fact
