Wed 27 Jul, 2022 Litigation

What Does the Defense Have to Prove?

The defense does not have to prove anything. The prosecution always has the burden to prove their case, and they must prove every element of the charge beyond a reasonable doubt. If the prosecution is unable to prove every element of the charge beyond a reasonable doubt, then the jury must find the defendant not guilty. This requirement applies for all classes of offenses–violations, misdemeanors, and felonies. 

Violations include such actions as trespassing or disorderly conduct. The maximum sentence for this behavior is up to 15 days in jail. While Violations are subject to the New York Penal Code, they are not considered a crime.

Misdemeanors may include prohibited conduct as petit larceny, criminal mischief and assault. Sentences may range from 15 days to one year, and a variety of fines may be imposed as well.

A felony is a more serious crime. In New York, there are five categories of felonies, ranging from Class A, the most serious, to Class E, the least serious. Felonies may include grand larceny, kidnapping, aggravated assault, and murder. Sentences may range from probation to life imprisonment. Significant fines may also be imposed.

Although the prosecution always has the burden to prove their case, certain defenses–called affirmative defenses–must be proven by the defense. With an affirmative defense, even if the prosecution can successfully prove each element of the charge beyond a reasonable doubt, the jury must find you not guilty if you prove the defense. The defense must prove the defense by a preponderance of the evidence, which means it is more likely than not that the elements required by the affirmative defense occurred.

What are Affirmative Defenses?

A skilled NYC criminal defense attorney like Cody can help you understand the possible affirmative defenses that you may be able to prove to get a not guilty verdict or case dismissal. The most common affirmative defenses are:


Duress is an affirmative defense that requires the defendant to prove that he committed a crime because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. This defense is not available if the defendant intentionally or recklessly placed himself in a situation in which it was probable that he would be subject to duress.

The prosecution may try to rebut a duress defense by introducing evidence of the defendant’s prior or subsequent criminal acts that tend to disprove that the defendant had an innocent intent. 


Entrapment is an affirmative defense that requires the defense to prove that the police actively induced or encouraged the commission of a crime and the inducement or encouragement created a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Police conduct that merely gives the defendant an opportunity to commit the crime is insufficient to establish an entrapment defense.

The prosecution may try to rebut an entrapment defense by introducing evidence of the defendant’s prior or subsequent criminal acts that trend to prove a disposition to commit the charged crime.

Even if you have been previously convicted of a crime, an entrapment defense could be available to you. The most critical question is whether you have previously been convicted for the specific charge that you are now facing. If you have not been previously convicted of your current charge, then you may have a strong entrapment defense.


Renunciation is an affirmative defense that requires the defense to prove that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.

A renunciation is not voluntary and complete if it is motivated in whole or in part by a belief that circumstances exist that increase the probability of detection or apprehension of the defendant or another participant in the crime, or which make it more difficult to accomplish the criminal purpose. A renunciation is also not voluntary and complete if the renunciation is simply to postpone the criminal conduct until another time or transfer the criminal effort to a different victim. 


Formally known as the affirmative defense of “mental disease or defect,” the insanity defense requires the defense to prove that, at the time of the offense, the defendant, due to the result of mental disease or defect, lacked substantial capacity to know or appreciate the nature and consequences of his conduct, or that such conduct was “wrong.” The meaning of “wrong” is that it is either against the law, against commonly held moral principles, or against both of those things.

If a defendant has multiple personalities, the jury must evaluate the defense based on the personality operating at the time of the defense.

If the defense intends to present an insanity defense, it must do so within 30 days of the defendant’s arraignment in court.

With insanity cases, extensive psychiatric evaluations of the defendant are performed, and the defendant’s prior mental health history is subject to review and scrutiny by the prosecution. Insanity cases typically require the defendant to present psychiatric witnesses who present their expert findings to the jury.  If the defendant is able to prove insanity, he typically is not released. In most cases, the defendant will be taken to a mental health facility for observation and/or treatment.

Contact an NYC Criminal Defense Attorney Today

If you’ve been charged with a crime, contact NYC criminal defense lawyer Cody Warner today. He can review your case and gather all the needed evidence to prepare a strategic defense.