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In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) [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]
In law, an absolute defence (or defense) is a factual circumstance or argument that, if proven, will end the litigation in favor of the defendant. [1] The concept of an absolute defence is not a rigid one. Statutes frequently use the term merely as a synonym to "full" or "complete".
The duty to defend is a contractual indemnitor or liability insurer's duty to defend the insured or indemnified party against claims. It is generally broader than the duty to indemnify and may cover defense against claims where ultimately no damage is awarded, and possibly even against claims that would not be covered by the duty to indemnify. [1]
For example, a charge of assault on a police officer may be negated by genuine (and perhaps reasonable) mistake of fact that the person the defendant assaulted was a criminal and not an officer, thus allowing a defense of use of force to prevent a violent crime (generally part of self-defense/defense of person). [12]
Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models have emerged from state jurisprudence: an individual right (defense of self or home) and a collective (defense of the state) right ...
In an affirmative defense, the defendant may concede that they committed the alleged acts, but they prove other facts which, under the law, either justify or excuse their otherwise wrongful actions, or otherwise overcomes the plaintiff's claim. In criminal law, an affirmative defense is sometimes called a justification or excuse defense. [4]
See self-defence (Australia) for a comparative view on whether the use of excessive force causing death should give rise to a mitigatory defence and "Reform" below. In Mead and Belt's Case (1823) 68 ER 1006. Holroyd J. instructed a jury that violence could not be used against a civil trespasser, adding: "But, the making an attack upon a ...
The new loss of control defense found in ss. 54-55 Coroners and Justice Act 2009 also removed sexual infidelity as a qualifying form of provocation, but in a recent controversial decision by Lord Judge in R v Clinton [2012] 1 Cr App R 26 in the Court of Appeal, Lord Judge interpreted the new offense as allowing for sexual infidelity to count ...