Title 39 – Criminal Offenses

Chapter 11 – General Provisions

Part 2 – Burden of Proof

39-11-204. Affirmative defense.

(a) An affirmative defense in this title is so labeled by the phrase: “It is an affirmative defense to prosecution under …, which must be proven by a preponderance of the evidence, that …,” or words of similar import.

(b) The state is not required to negate the existence of an affirmative defense in the charge alleging commission of the offense.


(1) If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days before trial, notify the district attorney general in writing of the intention, or at such time as the court may direct naming the affirmative defense(s) to be asserted, and file a copy of the notice with the clerk.

(2) Except as provided in this title, if there is a failure to comply with the provisions of this subsection (c), the affirmative defense may not be raised; provided, that this shall not limit the right of the person to testify on the person’s own behalf.

(3) The court may, for cause shown, allow late filing of the notice or grant additional time to the parties to prepare for trial or make other orders as may be appropriate.

(4) Evidence of an intention to raise an affirmative defense, which is later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave the notice of the intention.

(5) The provisions of this subsection (c) shall only apply in courts of record.

(d) The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised by the proof and notice has been provided according to subsection (c).

(e) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall instruct the jury that the affirmative defense must be established by a preponderance of the evidence.