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What Is an Affirmative Defense in Criminal Law?

As a defendant, you can present new and reliable evidence in court that demonstrates that the plaintiff should not win (or win less) the case. You may still be guilty of the crime, but the evidence may show that you had no choice but to commit the illegal act to avoid being harmed. This type of defense is commonly referred to as ‘affirmative defense.’

Your South Carolina criminal defense attorney may advise you to use an affirmative defense to absolve you of accountability for an alleged crime. When looking for a defense attorney, check if they’re familiar with affirmative defense and ask: 

Answers to these queries will help you understand the concept of criminal defense and increase your chances of winning the case. 

How Does Affirmative Defense Work?

In an affirmative defense, the defendant admits to the alleged crime but presents facts that explain why the crime happened. If the court finds these facts credible, you may lessen or defeat the charges against you. 

This type of defense is essentially a justification for the alleged crime. The facts you present should prove that your actions were taken under extenuating circumstances or under duress.

Your criminal defense attorney’s role in this type of case is to prove that an admissible affirmative defense is applicable to your case. Therefore, your attorney should have all the necessary information and details of the case to determine if an affirmative defense strategy is suitable and will be effective.

This is why you need to provide all of the facts from your criminal lawyer (even if it’s uncomfortable to discuss), especially if they believe an affirmative defense is the right course of action. Remember that your attorney must present credible facts in court to support your affirmative defense.

Examples of Affirmative Defenses in South Carolina

Depending on the nature of the charges, there are many instances when an affirmative defense may be appropriate in South Carolina. It is a common defense strategy used in criminal cases. Here are the main types of affirmative defenses often raised in this state:


If you’ve been diagnosed with a mental condition that might prevent you from understanding the full magnitude of your actions, your attorney will advise you to make an insanity plea as your defense. Then, you and your attorney must present evidence to prove your unbalanced mental state.

If the court finds the evidence reliable, you won’t be held liable for the crime even if you committed the act. Note that this type of affirmative defense follows some very strict guidelines that your attorney must be familiar with. You may still be punished if found guilty but with a sentence that aligns with a mental health condition.

Self-Defense Plea

This is a very common type of affirmative defense in criminal cases. It’s commonly used to challenge certain types of charges such as assault, murder, domestic abuse, and battery.

You can use the self-defense plea as your defense if you can prove that your life or someone else’s was in danger when you committed the crime. You must present evidence to show that your actions were justified and necessary.

Statute of Limitations

In South Carolina, legal actions must abide by their state statute of limitations. This can apply when law enforcement fails to take the necessary action within a designated period of time after a crime is committed.

In this case, you may be able to raise the statute of limitations as your defense. If your evidence is credible, the case could be dismissed. 

Retain Experienced Counsel

Being charged with a crime is a serious matter. To ensure you receive the best legal representation possible, contact the experts at Strom Law for a free consultation!




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