What Are Some Affirmative Defenses for a Preliminary Hearing?

If you or a loved one have been to a preliminary hearing, the judge will usually inquire of defense counsel if there are any affirmative defenses.  Most often, defense counsel will respond, “[n]o affirmative defense.”  Did defense counsel just commit malpractice?  Did he or she overlook something?  Is not defense counsel supposed to say something to defend the client? But what is an affirmative defense?  What are some examples of affirmative defenses that defense counsel can assert?

Generally speaking, defenses are broken into two types.  The first type, the most common type, disputes the sufficiency of the evidence to establish one or more elements (requirements, like items in a recipe) of the offense.  The second type affirmatively asserts facts that if true, defeats the prosecutions allegations.  This second type of defense requires the defense to produce some evidence of the facts to support the defense.

The second type of defense is what the judge in a preliminary hearing is asking for.  Defendant has the burden of producing some evidence of the facts establishing the defense.  This can be done by raising a reasonable doubt about the prosecution’s facts.  People v. Figueroa (1986) 41 Cal.3d 714, 721; 224 Cal.Rptr. 719; Comment to Evidence Code § 501.

What are some affirmative defenses then?
1.    Alibi.  In other words, it was not me.  I was somewhere else at the time and I have proof.  People v. Costello (1943) 21 Cal.2d 760, 765, 135 P.2d 164;
 
2.    Accident.  People v. Gonzalez (1999) 74 Cal.App.4th 382, 389;

3.    Self Defense.  The amount of force used to defend oneself must be reasonable under the circumstances and not exceed what is necessary. People v. Adrian (1982) 135 Cal.App. 3d 335, 337, 185 Cal.Rptr. 506;

4.    Necessity.  The person admits to committing the crime, but alleges that he had a good reason for doing so.  For example, a person may steal a hammer from a hardware store to go to a car, break the window and open the car door to help rescue a dog appearing to be suffering from heat stroke inside.  People v. Kearns (1997) 55 Cal.App.4th 1128, 1135, 64 Cal.Rptr. 654. 

5.    Entrapment. Generally speaking, it is when a police officer lures, induces or encourages a defendant into committing a crime that he or she expresses a desire not to commit.  People v. Moran (1970) 1 Cal.3d 755, 760, 83 Cal.Rptr. 411.

6.    Mistake of Fact.  This could be an assertion of consent for a battery or other crime.  People v. Mayberry (1975) 15 Cal.3d 143, 157, 125 Cal.Rptr. 745 (reasonable and good faith belief in consent, against charge of kidnapping and rape);

7.    Duress. This means defendant acted based on a threat of harm, which compelled the defendant to act against his better judgment or will. People v. Graham (1976) 57 Cal.App.3d 238, 240, 129 Cal.Rptr. 31;

8.    Defense of another.  People v. Roe (1922) 189 Cal. 548, 560, 209 P.560;

9.    Unconsciousness.  People v. Babbitt (1988) 45 Cal.3d 660, 689, 248 Cal.Rptr. 69;

10.    Insanity.  People v. Hernandez (2000) 22 Cal.4th 512, 522; and

11.    Lawful arrest, i.e. against a charge of false imprisonment.  People v. Agnew (1940) 16 Cal.2d 655, 664, 107 P.2d 601.

For more information about preliminary hearings, please click on the following articles:
  1. What Is a Preliminary Hearing?
  2. What Advantage Is There to Waiving a Preliminary Hearing?
  3. What Happens at a Felony Preliminary Hearing Setting Conference?
Contact us.
Client Reviews
Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well.
★★★★★
Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him. S.C., Rolling Hills Estates
★★★★★
Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards, L.H., Torrance
★★★★★
Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help. V.L., Carson
★★★★★
Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot. C.R., Pomona
★★★★★