Facing a criminal charge in Montrose County or elsewhere in Colorado? You have the right to defend yourself against the offense. You are presumed innocent until proven guilty. The burden of proof rests on the shoulders of the prosecution. There are a number of different ways to defend yourself against a criminal charge. In some cases, you may want to consider raising an affirmative defense. That is a category of offense that acknowledges that elements of the charge were committed, but that also introduces new facts/evidence that justify the defendant’s conduct. Here, our defense lawyer explains the key things to know about affirmative defenses in Colorado.
What is Affirmative Defense?
Broadly explained, an affirmative defense is a legal theory that acknowledges that the defendant engaged in some form of prohibited conduct but that also argues that the conduct was justified or otherwise excused under Colorado law. When a valid affirmative defense is raised, Colorado law shifts part of the burden. The prosecution must disprove the defense beyond a reasonable doubt.
The classic example of an affirmative defense is self-defense in an assault case. The defendant may admit that force was used but argues that the use of force was lawful because it was necessary to protect against imminent harm. The shift to the burden is powerful. It forces the state to engage with the defendant’s evidence rather than simply relying on the elements of the offense.
An Overview of Affirmative Defenses in Colorado
There are a number of different types of affirmative defenses that can be raised under Colorado state law. Here is an overview of the most common examples:
- Self Defense: Self defense is the most common affirmative defense. Under Colorado law (C.R.S. § 18-1-704), any person has the right to use physical force when they reasonably believe that another individual is about to use unlawful force against them. Though, the force must be proportionate to the perceived threat. Deadly force is limited to situations involving an imminent threat of death or serious bodily injury. Courts evaluate the defendant’s belief from the perspective of a reasonable person in the same circumstances.
- Defense of Others: Similar to self defense, another affirmative defense is the protection of others. A person may lawfully use force to protect another person from what they reasonably believe is the use or imminent use of unlawful physical force. Colorado applies the same proportionality rules used in self-defense. The question is whether the defendant reasonably believed the third party faced a threat that justified intervention. A reasonable belief is required for a person to be able to lawfully use force in the defense of others.
- Defense of Property (Home): You can use force to defend your property in Colorado, but there are more strict rules than for the protection of yourself or another person. Colorado law authorizes the use of reasonable physical force to prevent or terminate an unlawful entry or trespass on property. The defendant must be in lawful control or possession of the premises. The force must be limited to what a reasonable person would use to remove the intruder. Deadly force is allowed only under very narrow conditions.
- Necessity: Another affirmative defense in Colorado is necessity. You may hear this referred to as the “choice of evils” defense. The necessity defense applies when a defendant commits an act that would normally be criminal but does so to prevent a greater, imminent harm. Colorado requires a direct causal connection between the defendant’s conduct and the harm avoided. The defendant must reasonably believe their actions were necessary in the moment. The harm prevented must outweigh the harm caused by the violation of the law.
- Duress: You can also raise an affirmative offense against an (alleged) crime that was committed under duress. Duress applies when the defendant commits a crime because another person used threats that placed them in fear of immediate and serious bodily injury. The threat must be present, specific, and unavoidable. The defendant must show they had no reasonable opportunity to escape or obtain assistance from law enforcement. It should be noted that the affirmative defense of duress cannot be raised by a person who is facing a charge or intentional homicide in Colorado.
- Entrapment: Entrapment occurs when law enforcement induces a defendant to commit a crime that they were not otherwise predisposed to commit. The key question is the source of the criminal idea. If the idea began with the government and the defendant acted only because of pressure or persuasion, the defense becomes viable. Colorado looks at whether the officer’s conduct would cause a normally law-abiding person to commit the offense.
- Insanity: Finally, insanity is also an affirmative defense. A defendant may be found not guilty by reason of insanity if, at the time of the offense, they could not understand the nature or consequences of their actions or could not distinguish right from wrong. Colorado requires formal evaluation, expert testimony, and specific procedural steps, including written notice. The defense focuses on the defendant’s capacity at the time of the conduct, not on later symptoms or diagnoses. If successful, the defendant may be committed to the state hospital rather than sentenced to jail or prison.
How Affirmative Defenses Are Raised in Colorado Criminal Cases
In Colorado, an affirmative defense must be raised clearly and supported with evidence. In other words, they do not come into play automatically. If you are facing a criminal charge and you want to raise an affirmative defense, you (as the defendant) must present sufficient credible evidence that supports the defense in question. Only once that threshold is met, Colorado law shifts the burden. At that point, the prosecution must disprove the affirmative defense beyond a reasonable doubt. The shift can change the entire strategy of a case. Here is key point:
- An Affirmative Defense Requires Careful Planning: Successfully raising an affirmative defense in a criminal case in Colorado is not easy. It requires careful planning and guidance and support from a qualified Colorado criminal defense attorney. Your evidence should be compelling and well-organized. You may need eyewitness testimony and/or expert witness testimony, especially in cases involving self-defense, duress, or mental state.
Your affirmative defense should also anticipate the prosecution’s response. Prosecutors often attack affirmative defenses by arguing that the defendant’s belief was unreasonable or that the conduct exceeded what the law permits. A proactive approach is a must. Timing matters. In Colorado, courts expect affirmative defenses to be raised early enough for both sides to prepare. Some defenses, such as insanity, have specific notice requirements.
Why Trust Our Colorado Criminal Defense Attorney
Raising an affirmative defense is complicated. To do so effectively, it is imperative that you have strong, experienced legal representation. Our founding attorney Brent Martin is a defense lawyer with more than two decades of legal representation. We have the knowledge, skills, and legal expertise to take on all types of affirmative defenses, including self defense. No matter your circumstances, we are here to help you find the best path forward.
Get Help With Brent Martin Today
At The Martin Law Firm, our Colorado defense lawyer is proactive, diligent, and committed to fighting for justice. If you have any questions about raising an affirmative defense, we are here to help. Contact us today for a completely confidential, no obligation initial consultation. With an office in Montrose, we provide criminal defense representation throughout the region, including in Montrose County, San Miguel County, Delta County, Gunnison County, and Mesa County.