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In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense (or defence) in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against them in a criminal or civil proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable.

The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase.

Since a defence is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, if a defendant in an assault and battery case attempts to claim provocation, the victim of said assault and battery would not have to prove that he did not provoke the defendant; the defendant would have to prove that the plaintiff did.

Common law defences

In common law, a defendant may raise any of the numerous defences to limit or avoid liability. These include:

• Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity.


• Failure to state a cause of action or other insufficiencies of pleading.


• Any of the affirmative defences.


• Defences conferred by statute - such as a statute of limitations or the statute of frauds.


• 
  Ex turpi causa non oritur actio - the action against the defendant arises from an illegality.


• 
  Volenti non fit injuria - consent by the victim or plaintiff.


• 
  In pari delicto - both sides equally at fault


• Unclean hands

In addition to defences against prosecution and liability, a defendant may also raise a defence of justification - such as self-defence and defence of others or defence of property.

Strategies

The defense in a homicide case may attempt to present evidence of the victim's character, to try to prove that the victim had a history of violence or of making threats of violence that suggest a violent character.^[1][2] The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense,^[1] or in the hope of accomplishing jury nullification in which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act.^[3]

Costs

Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. Defendants can pay with their own money, through legal defence funds, or legal financing companies.

See also

• Absolute defense


• Lawsuit


• Legal defense fund


• Legal financing


• Self-defence


• Atturnato faciendo vel recipiendo

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