Affirmative Defense

An affirmative defense is a legal term that you should be aware of, especially if you are facing criminal charges. This strategy counters the prosecution’s accusations by presenting evidence and arguments that justify your actions or mitigate their impact.

In essence, it shifts the focus from whether or not you committed an act to why this action occurred under those specific circumstances and why it was lawful.

No matter what charges you’re facing and what defense you think is best, you should always work with a Louisville criminal defense attorney who can help you mount the strongest and most effective strategy. 

Examples of Affirmative Defenses in Louisville, Kentucky

In Kentucky, several affirmative defenses can be raised in response to criminal charges. Understanding these legal defenses is crucial in effectively navigating the complexities of your case. Here are some examples:


Self-defense can be utilized to contest criminal accusations in which you’re accused of causing harm to someone else – for example, assault and domestic violence cases. Under Kentucky law, you are permitted to exert physical force in your own defense if such action is necessary to prevent imminent harm.

You must also prove that the extent of force you employed was proportionate to the danger faced — meaning your reaction should not exceed what would be justified given the context of the situation.

For example, if someone punched you in the face and then started to walk away, it probably isn’t proportionate or lawful to hit them with a baseball bat in the back of the head as they have their back to you. 

When Deadly Force Can Be Used

In Kentucky, the use of deadly force is permitted only under specific conditions. This state follows what is commonly referred to as a ‘stand your ground’ law; you aren’t expected to withdraw or retreat from a threat when you’re in a location where you have every right to be.

The application of lethal force can be used under several circumstances, including when you’re facing the following:

  • Death
  • Serious physical injury
  • Kidnapping
  • Rape
  • A felony involving force
  • Home invasion (according to the Castle Doctrine)

Understanding self-defense in Kentucky is crucial when facing criminal charges related to violence. 


Entrapment is another affirmative defense, which argues that law enforcement officials enticed you to commit a crime so they could gather evidence for prosecution against you. Being able to utilize this defense hinges on whether you would have committed the crime without intervention from law enforcement. If you can show that you had no prior inclination toward such behavior, entrapment could work as a defense. 

Example of Entrapment

Here’s an example to illustrate the concept of entrapment:

A police officer might present himself as a drug dealer and offer illegal substances to someone. If that person had no previous history or inclination towards buying drugs, yet is arrested and charged with possession upon purchasing them due to persuasion from the undercover officer, it could be viewed as law enforcement creating a drug crime.


An insanity defense involves asserting that at the time of the criminal act, due to mental illness or incapacity, a defendant was unable to reasonably understand or appreciate the nature, quality, and wrongfulness of their actions.

If you plan on invoking this defense strategy in Kentucky, at least 90 days notice before the trial date is required.

The prosecution then has 10 days to request a psychiatric evaluation which involves assessing and reporting on the defendant’s life history, which includes the evaluator’s conclusions on the defendant’s mental state at the time of the alleged crime.

Successful Insanity Defense Does Not Equal Freedom

In Kentucky, being declared not guilty by reason of insanity doesn’t usually mean freedom. Quite the contrary, it often leads to extended confinement in a mental health institution which could be stricter or more intense than your standard prison environment.

Employing this defense might lead to markedly longer periods of confinement when compared to conventional sentencing since there is generally no definitive end date. Instead, the period of institutionalization stretches until the defendant is deemed safe for release by medical professionals.

Affirmative Defenses Shift the Burden of Proof 

In criminal trials, it is normally up to the prosecutor to prove that you are guilty beyond a reasonable doubt. To establish this, they present evidence of your supposed crime. When this happens, a defendant and their lawyer might attempt to cast doubt on this evidence by questioning its credibility or sufficiency of the evidence.

However, when presenting an affirmative defense, the burden now rests with the defendant to prove that they had a valid reason for committing the act, which negates criminal liability. 

Set Up a Free Consultation With an Experienced Louisville Criminal Defense Attorney

Navigating the nuances of affirmative defenses requires thorough knowledge of complex statutes and rules, which can be incredibly confusing if you don’t have a legal education. 

Working with an experienced attorney is therefore vital in helping you present an appropriate defense strategy. If you need help, don’t hesitate to contact our attorneys from Suhre & Associates DUI and Criminal Defense Lawyers today at (502) 371-7000 to schedule a free consultation with a criminal defense lawyer.