The Champion

September/October 2006 , Page 46 

Search the Champion Looking for something specific?

Preview of Member Only Content

For full access: login or Become a Member Join Now

Jurors Must Unanimously Reject Defenses Before Convicting

By Thomas Lundy

Read more Jury Instruction columns.

An affirmative defense – which must be proven by the defense – negates guilt even if all elements of the charge have been proven beyond a reasonable doubt. (E.g., insanity; entrapment in jurisdictions placing burden on the defense.) Logically, therefore, the jurors should not be permitted to find the defendant guilty unless all jurors (or the required number of jurors in jurisdictions allowing non-unanimous conviction) have rejected the affirmative defense. See United States v. Southwell, 432 F.3d 1050 (9th Cir. 2005). This logic has been explained in the civil context as follows:

“ . . . [A] defendant cannot be held liable until the jury unanimously rejects an affirmative defense.” Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 982-83 (9th Cir. 2002); see also Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1579-80, 1583-84 (Fed. Cir. 1995) (affirming a district court’s refusal to enter judgment for plaintiff on two special interrogatories setting forth affirmative defenses wh

Want to read more?

The Champion archive is reserved for NACDL members.

NACDL members, please login to read the rest of this article.
login

Not a member? Join now.
Join Now
Or click here to see an overview of NACDL Member benefits.

See what NACDL members say about us.

To read the current issue of The Champion in its entirety, click here.

  • Media inquiries: Contact NACDL's Director of Public Affairs & Communications Ivan J. Dominguez at 202-465-7662 or idominguez@nacdl.org
  • Academic Requests: Full articles of The Champion Magazine are available for academic and research purposes in the WestLaw and LexisNexis databases.

In This Section

Advertisement Advertise with Us
ad