When you raise an affirmative defense in a Colorado criminal case, you are claiming that your unlawful acts were justified under the circumstances. Because they were justified, you are not guilty of the charges alleged.
If you raise “credible evidence” of the affirmative defense, prosecutors then have the burden to disprove your affirmative defense beyond a reasonable doubt. If they cannot, then you should be acquitted of the charges.1
In this article, our Colorado criminal defense attorneys discuss the top five affirmative defenses:
1. Self-defense
Self-defense is a common defense to violent crime charges such as:
- first-degree murder – deliberately killing a person;
- attempted murder – trying but failing to kill a person;
- second-degree assault – the use of unlawful physical force on another person with a deadly weapon; and
- menacing – putting another person in fear of being assaulted.
Colorado law permits you to fight back against an assailant as long as it is reasonable and proportional. You can even kill or seriously injure the assailant if you have reasonable grounds to believe you (or someone else) is in imminent danger of serious bodily injuries or death.
So when you claim “self-defense” in response to a violent crime allegation, you do not dispute that you physically touched or harmed someone else; instead, you are claiming that your otherwise unlawful actions were justified under the circumstances.2
Learn more in our articles, Colorado’s Make My Day Laws and Is Colorado a Stand Your Ground State?
2. Consent
Consent is a common defense to sex crime charges such as:
- sexual assault/rape – non-consensual sexual penetration;
- date rape – rape of someone you are in a dating relationship with;
- spousal rape – rape of a spouse; and
- unlawful sexual contact – non-consensual fondling or groping.
So when you claim “consent” in response to a sex crime charge, you do not dispute that the alleged sexual acts occurred; instead, you are claiming that the accuser in fact consented to the sex acts.
Note that consent can be a valid defense to non-sex-related charges such as kidnapping, false imprisonment, domestic violence, and assault.
Also note that consent is not a valid defense to statutory sexual assault charges. This is because a minor under the age of consent (17 years old) is incapable of consenting to sex.3
Learn more in our articles, dating laws and rules for minors and Does Colorado have a Romeo and Juliet law?
3. Insanity
Insanity is a common defense to all types of criminal charges, from homicide to financial/real estate crimes. Colorado law considers you legally insane if – at the time of the offense – you were either:
- so diseased or defective in mind as to be incapable of distinguishing right from wrong; or
- suffering from a condition of the mind caused by a mental disease or defect that prevented you from forming a culpable mental state that is an essential element of the offense charged.
So when you claim “insanity” in response to a criminal charge, you do not dispute you committed the alleged unlawful acts; instead, you are claiming that your mental state negates your ability to have a guilty mind.
Note that once you plead not guilty by reason of insanity, the trial court will order that you undergo a psychiatric examination to determine whether you may be allowed to proceed with that plea. If you are found not guilty by reason of insanity, you would be committed to a mental institution.4
Voluntary intoxication is not an affirmative defense to drunk driving charges in Colorado.
4. Intoxication
Involuntary intoxication (such as when you are drugged without your knowledge) is a valid defense to all types of crimes, including DUI.
But voluntarily intoxication (where you knowingly ingested drugs or alcohol) is only a defense to “specific intent” crimes. Specific intent crimes are where prosecutors have the burden of proof to show that you intended to commit the criminal acts. Examples of specific intent crimes include:
- forgery;
- perjury; and
- criminal mischief.
Voluntary intoxication is not a defense to general intent crimes, which are crimes without a “criminal intent” element. Examples of general intent crimes include:
- DUI; and
- statutory rape.
Either way, when you claim “intoxication” in response to a criminal charge, you do not dispute that you committed the unlawful acts; instead, you claim that your intoxicated state relieves you of any criminal liability.5
Learn more in our article, The difference between general and specific intent crimes in Colorado.
5. Entrapment
Entrapment is a common defense to such crimes as:
Police are permitted to go undercover (as prostitutes, “johns”, or drug buyers, for example) to set up unknowing suspects to break the law. However, legal trickery crosses the line into entrapment when police pressure people to commit crimes they were not predisposed to commit.
So when you claim “entrapment” in response to a criminal charge, you do not dispute that you committed the alleged unlawful acts; instead, you are claiming that you never would have committed the crime but for the police putting you under duress.6
Arrested in Colorado? Contact our Denver criminal defense lawyers to discuss your legal options. Our Denver Colorado criminal law firm appears in municipal and district courts throughout the state, including Arapahoe County, Loveland, Colorado Springs, and more.
See our related article on statutes of limitations in Colorado criminal cases.
Legal References
- CRS 18-1-407, subsections 1 and 2. CRS 18-1-702 – Choice of evils. Note that affirmative defenses come from common law. And affirmative defenses are also used in civil procedure as well: for example “good faith” can be an affirmative defense to a plaintiff’s claims of breach of contract.
- CRS 18-1-704. CRS 18-1-706. See also C.R.S. 18-1-705 (Use of physical force in defense of premises). See, for example, Castillo v. People, (Colo. Supreme Court, 2018) 421 P.3d 1141.
See also Colorado Jury Instructions H:11 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON) The evidence presented in this case has raised the affirmative defense of “defense of person,” as a defense to [insert name(s) of offense(s)]. The defendant was legally authorized to use physical force upon another person without first retreating if:
1. he [she] used that physical force in order to defend himself [herself] or a third person from what he [she] reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
2. he [she] used a degree of force which he [she] reasonably believed to be necessary for that purpose. [, and]
[3. he [she] did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.]
[4. he [she] was not the initial aggressor, or, if he [she] was the initial aggressor, he [she] had withdrawn from the encounter and effectively communicated to the other person his [her] intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.]
[5. the physical force involved was not the product of an unauthorized combat by agreement.]
The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions. After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s]. After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s]. - See, for example, People v. Cruz, (Colo. App. 1995) 903 P. 2d 1198.
- M’Naghten’s Case (1843) 10 C & F 200. CRS 16-8-101.5. 18 U.S.C. § 17(a) (2000). See also Durham v. United States, (D.C. Cir., 1954) 214 F.2d 862 (no longer followed).
- See, for example, People v. Garcia (2005) .
- CRS 18-1-709.
