Affirmative Defenses

At trial a defendant may assert certain affirmative defenses.  The argument to the jury is the conduct that the prosecution is alleging is accurate, but your behavior was legally justified.  There are only very specific times when these defenses may be raised.  The Florida Jury Instructions state many of the elements for these defenses

  • Self-Defense
  • Alibi
  • Duress
  • Necessity
  • Insanity
  • Entrapment
  • Advice of Counsel


A defendant asserting self-defense at trial is arguing that they were justified in using or threatening to use force because either themselves or someone else was using or threatening to use force against them.  A defendant asserting the affirmative defense of justifiable use of force may, under certain circumstances, do so to defend property.  For a more thorough analysis of self-defense please click here.


An alibi argues that while a crime may have occurred, this defendant was not the one who committed it, and was not present when the crime was committed.  The jury instructions go on to state “If you have a reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to find the defendant not guilty.”

Duress or Necessity

Duress or Necessity are two affirmative defenses that can be utilized at trial and the jury instructions are very similar.  Duress excuses criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the law.  In order to receive the jury instruction for duress the Court ruled in Stannard v. State 113 So.3d 929 defendant’s evidence must show six elements:

  1. The defendant reasonably believes a danger or emergency existed that he did not cause
  2. The danger or emergency threatened significant harm to the defendant or third party
  3. The threatened harm must be real, imminent, and impending
  4. The defendant had no reasonable way to avoid the danger or emergency except by committing the crime
  5. The crime must have been committed under duress in order to avoid the danger or emergency
  6. The harm the defendant avoided outweighs the harm caused by committing the crime


All people are presumed to be sane.  It is an affirmative defense to argue that at the time of the commission of an act the defendant was insane.  The defense has the burden of proving insanity by clear and convincing evidence.  This means that if the jury finds that a defendant committed the crime but also finds that the defendant was insane then the jury should find him not guilty by reason of insanity.  Insanity is established when the defendant was a mental infirmity, disease, or defect, and because of the condition the defendant:

  • Did not know what they were doing or its consequences OR
  • The defendant knew what they were doing and its consequences, but did not know that what they were doing was wrong

Advice of Counsel

Advice of counsel is a defense stating that “yes I did it, but my lawyer said it was okay for me to do.”  In order to argue for an advice of counsel defense you must show:

  1. Counsel is aware of all relevant facts, there must be complete disclosure by the client
  2. Counsel is consulted as to the legality BEFORE the action is taken
  3. Counsel made it clear that conduct was legal
  4. Counsel’s advice is relied upon in good faith and followed

If advice of counsel is argued, then the attorney-client privilege is waived with that law and the prosecutor is free to speak with the attorney and the attorney is free to speak with the prosecutor.


An entrapment defense can be raised when a defendant is induced or encouraged to commit a crime by a law enforcement officer or their agent, and he or she engages in the criminal conduct as a direct result of the inducement.  Additionally, the law enforcement officer or agent used methods which created a substantial risk that the crime would be committed.  Finally, the defendant must not have had a predisposition to commit that crime.  The defendant must prove “by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged.”  If the jury makes that finding then they should return a verdict of not guilty.


Florida Jury Instructions