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2.9 Introduction to Affirmative Defenses

Revised to December 1, 2007

An affirmative defense raises additional factors which, if proved, may exonerate the defendant.  State v. Wilkinson, 176 Conn. 451, 465 (1979).  The burden of proof is on the defendant to prove an affirmative defense.  General Statutes § 53a-12 (b).  Section "53a-12 (b) does not require the legislature expressly to declare that an exception to culpability is an affirmative defense for it to operate as an affirmative defense."  State v. Valinski, 254 Conn. 107, 127 (2000).  It also does not "require that all affirmative defenses be statutorily prescribed."  Id.  "[I]f § 53a-12 (b) does not prohibit the recognition of common-law affirmative defenses, it would be unreasonable to conclude that § 53a-12 (b) abrogates the rule of statutory construction that where exceptions to a prohibition in a criminal statute are situated separately from the enacting clause, the exceptions are to proven by the defense."  (Internal quotation marks omitted.)  Id., 127-28.

"Under Patterson, [432 U.S. 197, 209, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977),] a state can place the burden of proving an affirmative defense on the defendant as long as that burden does not include negating an element of the crime."  State v. Wilkinson, 176 Conn. 451, 464 (1979); see also State v. Andresen,  256 Conn. 313, 326-27 (2001) (construing exemptions in the Connecticut Uniform Securities Act to be affirmative defenses because they do not serve to negate an element of the crime of selling unregistered securities).

"An affirmative defense is presented in the orderly course of a criminal trial after the prosecution has presented its case-in-chief."  State v. Coleman, 202 Conn. 86, 91 (1987). 

When instruction is required
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); State v. Small, 242 Conn. 93, 102-103 (1997) (same is true regardless of whether defendant or state requested instruction). 

Specific affirmative defenses
Most affirmative defenses are legislatively created to apply to specific offenses.  Exceptions are:

1. Statutes of limitations.  General Statutes §§ 54-193, 54-193, 54-193b.  State v. Coleman, 202 Conn. 86, 91 (1987) (§ 54-193 (b) is an affirmative defense, not a jurisdictional bar to prosecution); State v. Parsons, 28 Conn. App. 91, 96 (1992) (burden is on the defendant to prove a statute of limitations defense); see also State v. Ali, 233 Conn. 403, 416 (1995) (defendant entitled to jury instruction on whether arrest warrant was issued with due diligence so as to bring prosecution within the statute of limitations); State v. Soldi, 92 Conn. App. 849, 860 (2006) (burden is on the state to prove that the warrant was executed within a reasonable time).

2. Abandonment.  State v. Wilkinson, 176 Conn. 451, 463 (1979); State v. Alterio, 154 Conn. 23, 31 (1966).  Defendant must prove 1) change of purpose, and 2) communication of that change to coparticipant(s).  General Statutes § 53a-10 makes abandonment by an accessory a general defense.  Wilkinson questions whether this may have had some effect on the holding of Alterio, but concludes that principal and accessorial liability are sufficiently dissimilar to not infer from the enactment of § 53a-10 that abandonment in all cases is no longer an affirmative defense.

3. Lack of capacity.  See Instruction 2.9-2.

Offense-specific affirmative defenses are discussed with the instruction for the offense.

The following affirmative defenses are in separate instructions: 

• Inoperability of Firearm -- § 53a-16a, Instruction 2.9-3.

• Unarmed Coparticipant -- § 53a-16b, Instruction 2.9-4.

• Affirmative Defense of Extreme Emotional Disturbance -- § 53a-54a(a) and § 53a-55(a)(2), Instruction 5.2-1.

• Affirmative Defense to Felony Murder -- § 53a-54c, Instruction 5.4-2.

• Affirmative Defense to Sexual Assault -- § 53a-67, Instruction 7.1-13.

• Affirmative Defense to Obscenity as to Minors -- § 53a-196 (c), Instruction 7.4-4.

• Affirmative Defenses to Child Pornography Possession -- § 53a-196g, Instruction 7.7-5.

• Affirmative Defense of Drug Dependency, Instruction 8.1-4.

• Affirmative Defense to Possession of Assault Weapon -- § 53a-203o, Instruction 8.2-28.

• Affirmative Defense to Burglary -- § 53a-104, Instruction 9.2-6.

• Affirmative Defenses to Criminal Trespass -- § 53a-110, Instruction 9.4-5.