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The Champion

September/October 2006 , Page 46 

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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

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