In a civil proceedingorcriminal prosecution under the common law or under statute, a defendant may raise a defense (ordefence)[a] in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.[2]
Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the 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. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability.
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 defense 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, a defendant who is charged with assault may claim provocation, but they would need to prove that the plaintiff had provoked the defendant.
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.[4][5] The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense,[4] 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.[6]
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. A defendant can pay with their own money, through legal defense funds, or legal financing companies. For example, in the United Kingdom, a defendant's legal fees may be covered by legal aid.[7]
^The traditional spelling "defence" was used in both American English and British English as late as the 1930s. Since then, Americans have come to regard "defence" as a British affectation and they use "defense" instead.[1]
^Imwinkelreid, Edward J. (January 2006). "An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances". University of Richmond Law Review. 40 (2): 426.
^"Legal aid". GOV.UK. Government of the United Kingdom.