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ScottDLS wrote: ↑Sat Dec 30, 2023 11:27 am Not to quibble with Steve's post, and see my longer discussion I just posted, but with regards to the Defense to Prosecution, I disagree slightly.

A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt.

A Defense does not have to be negated in the charging document but if it is raised by the defendant at trial, then it must be negated by the prosecution beyond a reasonable doubt to the jury.

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

srothstein wrote: ↑Fri Dec 29, 2023 10:47 pm I agree with you for real world applications, but for technical legal discussions there is a real difference. From a technical legal viewpoint, if you did not break the law then no crime occurred. If a crime did not occur, you cannot be indicted and tried. The fact that you can be arrested and tried, even if you cannot be convicted, means that the law was broken.

Perhaps this may be best understood by looking at the exact wording of how the exception and defenses work. The DA must negate the existence of an exception in the charging document and prove this at trial. This means the existence of an exception is an element of the offense. A defense does not have to be negated by the DA and is only submitted to the jury if the defendant provides evidence of the defense. And to win, the defendant must prove the defense beyond a reasonable doubt. An affirmative defense is also not negated by the DA and must be proven by the defendant. In this case, the proof only has to be to the level of a preponderance of the evidence (as in more likely to exist than not). The DA does not need to prove anything about the existence of the defense or affirmative defense until after the defendant has created it and shown enough evidence to meet the standards without the DA introducing contrary evidence.