DEFENSE
defense (di-fen[t]s).1. A defendant’s stated reason why the plaintiff or prosecutor has no valid
case; esp., a defendant’s answer, denial, or plea < her defense was that she was 25 miles from the
building at the time of the robbery>. [Cases: Criminal Law 31. C.J.S. Criminal Law §§ 15,
46–49, 88, 93–94.]
“Defence is defined to be that which is alleged by a party proceeded against in an action or
suit, as a reason why the plaintiff should not recover or establish that which he seeks by his
complaint or petition.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure
240 (2d ed. 1899).
affirmative defense.A defendant’s assertion of facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true. • The
defendant bears the burden of proving an affirmative defense. Examples of affirmative defenses
are duress (in a civil case) and insanity and self-defense (in a criminal case). — Also termed plea
in avoidance; plea in justification. Cf. negative defense. [Cases: Criminal Law 31; Federal Civil
Procedure 751; Pleading 78. C.J.S. Criminal Law §§ 15, 46–49, 88, 93–94; Pleading §§
160–161.]
capacity defense.A defense based on the defendant’s inability to be held accountable for an
illegal act or the plaintiff’s inability to prosecute a lawsuit (as when the plaintiff was a corporation,
but has lost its corporate charter). See CAPACITY.
choice-of-evils defense.See lesser-evils defense.
collateral defense (k<<schwa>>-lat-<<schwa>>-r<<schwa>>l).Criminal law. A defense of
justification or excuse not involving a rebuttal of the allegation and therefore collateral to the
elements that the prosecutor must prove. See EXCUSE(2); JUSTIFICATION(2). [Cases: Criminal
Law 38. C.J.S. Criminal Law §§ 49–53.]
defense of habitation.The defense that conduct constituting a criminal offense is justified if
an aggressor unjustifiably threatens the defendant’s place of abode or premises and the defendant
engages in conduct that is (1) harmful to the aggressor, (2) sufficient to protect that place of abode
or premises, and (3) reasonable in relation to the harm threatened. — Also termed defense of
premises. See CASTLE DOCTRINE.
defense of inequitable conduct.Patents. A defense to an action for patent infringement, made
by charging the plaintiff with breaching the duty of candor and good faith. • To succeed, the
defendant must show that, in the patent prosecution, the plaintiff intentionally withheld material
information from or misled the examiner. Inequitable conduct is a combination of two former
defenses: unclean hands and fraud on the Patent Office. [Cases: Patents 97. C.J.S. Patents §§
135–138, 145, 178.]
derivative defense.A defense that rebuts the criminal elements that a prosecutor must
establish to justify the submission of a criminal case to a jury.
designer defense.A novel defense based on diminished capacity attributed to stress or
impairment. • The phrase derives from the fact that the defense is tailored to the defendant and the
circumstances of the crime. Examples include extraordinary reactions to snack food (the Twinkie
defense), unconsciousness or sleepwalking, and postpartum psychosis. See AUTOMATISM.
dilatory defense (dil-<<schwa>>-tor-ee). A defense that temporarily obstructs or delays a
lawsuit but does not address the merits. • Examples of dilatory defenses include misjoinder,
nonjoinder, res judicata, misnomer, lack of capacity to sue, another action pending, statute of
limitations, prematurity, unripeness, release, and settlement.
dwelling defense.See CASTLE DOCTRINE.
eleemosynary defense.See charitable immunity under IMMUNITY(2).
equitable defense.A defense formerly available only in a court of equity but now
maintainable in a court of law. • Examples include mistake, fraud, illegality, failure of
consideration, forum non conveniens, laches, estoppel, and unclean hands.
frivolous defense.A defense that has no basis in fact or law.
full defense.A technical common-law defensive plea, stated at length and without
abbreviation. • The plea is obsolete because of the pleading requirements in federal and state rules
of civil procedure.
general-justification defense.See lesser-evils defense.
imperfect defense.A defense that fails to meet all legal requirements and usu. results only in a
reduction in grade or sentence rather than an acquittal, as when a defendant is charged with
manslaughter rather than murder because the defendant, while defending another, used
unreasonable force to repel the attack. See imperfect self-defense under SELF-DEFENSE. Cf.
perfect defense.
inconsistent defense.A defense so contrary to another defense that the acceptance of one
requires abandonment of the other. • A person accused of murder, for example, cannot claim both
self-defense and the alibi of having been in a different city when the murder took place. [Cases:
Criminal Law 43.5. C.J.S. Criminal Law § 54.]
innocent-owner defense.A forfeiture-action defense in which the owner of property (such as
real estate or money) asserts that another person committed the wrongful act or omission while
using the property without the owner’s knowledge or consent. See 18 USCA § 981(a)(2); 21
USCA § 881. See civil forfeiture under FORFEITURE.
insanity defense.See INSANITY DEFENSE.
issuable defense.Common-law pleading. A plea on the merits setting forth a legal defense. Cf.
issuable plea under PLEA(3).
justification defense.See JUSTIFICATION DEFENSE.
legal defense.A complete and adequate defense in a court of law.
lesser-evils defense.The defense that, while the defendant may have caused the harm or evil
that would ordinarily constitute a criminal offense, in the present case the defendant has not
caused a net harm or evil because of justifying circumstances and therefore should be exculpated.
— Also termed choice-of-evils defense; necessity; general-justification defense.
meritorious defense (mer-<<schwa>>-tor-ee-<<schwa>>s).1. A defense that addresses the
substance or essentials of a case rather than dilatory or technical objections. [Cases: Judgment
145, 379, 447. C.J.S. Judgments §§ 341, 404, 445.] 2. A defense that appears likely to succeed or
has already succeeded.
necessity defense.See JUSTIFICATION(2).
negative defense.A defendant’s outright denial of the plaintiff’s allegations without additional
facts pleaded by way of avoidance. Cf. affirmative defense.
ostrich defense.A criminal defendant’s claim not to have known of the criminal activities of
an associate.
partial defense.A defense going either to part of the action or toward mitigation of damages.
pass-on defense.An antitrust defense that a member of the distributive chain who was
overcharged or undercharged passed on the price adjustment to reflect the charge and thereby
suffered no damage. — Also termed passing on.
peremptory defense (p<<schwa>>r-emp-t<<schwa>>r-ee). A defense that questions the
plaintiff’s legal right to sue or contends that the right to sue has been extinguished.
perfect defense.A defense that meets all legal requirements and results in the defendant’s
acquittal. See perfect self-defense under SELF-DEFENSE. Cf. imperfect defense.
pretermitted defense (pree-t<<schwa>>r-mit-id). A defense available to a party that must be
pleaded at the right time or be waived.
sham defense.A fictitious, untrue defense, made in bad faith.
sleepwalking defense.See AUTOMATISM.
SODDI defense. See SODDI DEFENSE.
true defense.A defense admitting that a defendant committed the charged offense, but seeking
to avoid punishment based on a legal excuse (such as insanity) or justification (such as
self-defense).
unconsciousness defense.See AUTOMATISM.
xyy-chromosome defense.See XYY-CHROMOSOME DEFENSE.
2. A defendant’s method and strategy in opposing the plaintiff or the prosecution; a doctrine
giving rise to such a method or strategy <the lawyer advised her client to adopt a passive defense
and to avoid taking the witness stand>.
empty-chair defense.See EMPTY-CHAIR DEFENSE.
Stalingrad defense.The strategy of wearing down the plaintiff by tenaciously fighting by
whatever means anything the plaintiff presents and appealing every ruling favorable to the
plaintiff, rather than presenting a meritorious case. • The tactic is named for the Russian city
besieged by the Germans in World War II. The defenders refused to surrender and used every
available tactic and tool to hold the attackers at bay until winter cut the enemy’s supply lines,
leaving the attackers with inadequate resources with which to continue the siege.
3. One or more defendants in a trial, as well as their counsel <the defense
rests>.4.Commercial law. A basis for avoiding liability on a negotiable instrument <the drawer
asserted a real defense against the holder in due course>.
absolute defense.See real defense.
personal defense.An ordinary defense in a contract action — such as failure of consideration
or nonperformance of a condition — that the maker or drawer of a negotiable instrument is
precluded from raising against a person who has the rights of a holder in due course. • A personal
defense can be asserted only against a transferee who is not a holder in due course. — Also termed
limited defense.
real defense.A type of defense that is good against any possible claimant, so that the maker or
drawer of a negotiable instrument can raise it even against a holder in due course. • The ten real
defenses are (1) fraud in the factum, (2) forgery of a necessary signature, (3) adjudicated insanity
that, under state law, renders the contract void from its inception, (4) material alteration of the
instrument, (5) infancy, which renders the contract voidable under state law, (6) illegality that
renders the underlying contract void, (7) duress, (8) discharge in bankruptcy, or any discharge
known to the holder in due course, (9) a suretyship defense (for example, if the holder knew that
one indorser was signing as a surety or accommodation party), and (10) a statute of limitations
(generally three years after dishonor or acceptance on a draft and six years after demand or other
due date on a note). — Also termed absolute defense; universal defense. [Cases: Bills and Notes
364. C.J.S. Bills and Notes; Letters of Credit § 191.]
5. Measures taken by a country or individual to protect against an attack. See
SELF-DEFENSE; NATIONAL DEFENSE(1).
self-defense. See SELF-DEFENSE.
6. A country’s military establishment. See NATIONAL DEFENSE(2). — Also spelled (in all
senses esp. in BrE) defence. 7.TAKEOVER DEFENSE. [Blacks Law 8th]