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((short description|Legal procedure))
((Other uses|Defence (disambiguation)))
((Redirect-distinguish|Defence counsel|Defence Council (disambiguation)((!))Defence Council))
((Use American English|date=August 2020))
((Cleanup rewrite|date=May 2009))
((more citations needed|date=September 2018))
((Criminal defenses))

In a [[civil proceeding]] or [[criminal prosecution]] under the [[common law]] or under [[statute]], a [[defendant]] may raise a '''defense''' (or '''defence''')((efn|The traditional spelling "defence" was used in both [[American English]] and [[British English]] as late as the 1930s. Since then, Americans have come to regard "defence" as a British affectation and they use "defense" instead.<ref name="Garner_Page_257">((cite book |last1=Garner |first1=Bryan A. |authorlink1=Bryan A. Garner |title=Garner's Dictionary of Legal Usage |date=2011 |publisher=Oxford University Press |location=Oxford |isbn=9780195384208 |page=257 |edition=3rd |url=https://books.google.com/books?id=O1m1bI5vCooC&pg=PA257 |access-date=September 10, 2023))</ref>)) in an effort to avert civil [[legal liability|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.<ref>((cite web |title="Defense" |url=https://thelawdictionary.org/defense/ |website=The Law Dictionary |date=9 November 2011 |access-date=24 July 2021))</ref>  

Besides contesting the accuracy of an [[allegation]] made against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merely [[Mitigation|mitigates]] the liability.

The defense phase of a [[trial]] occurs after the [[prosecution]] phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the [[cross-examination]] during the prosecution phase.

Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the [[Legal burden of proof|burden of proof]].  For example, a defendant who is charged with [[assault]] may claim [[provocation (legal)|provocation]], but they would need to prove that the plaintiff had provoked the defendant.

== Common law defenses ==
((See also|Category:Equitable defenses))

In [[common law]], a defendant may raise any of the numerous defenses to limit or avoid liability. These include:

* Lack of [[Personal jurisdiction|personal]] or [[subject matter jurisdiction]] of the court, such as [[diplomatic immunity]]. (In law, this is not a defense as such but an argument that the case should not be heard at all.)
* Failure to state a [[cause of action]] or other insufficiencies of [[pleading]].
* Any of the [[affirmative defense]]s.
* Defenses conferred by statute – such as a [[statute of limitations]] or the [[statute of frauds]].
* ''[[Ex turpi causa non oritur actio]]'' – the action against the defendant arises from an illegality.
* ''[[Volenti non fit injuria]]'' – [[consent]] by the victim or plaintiff.
* ''[[In pari delicto]]'' – both sides equally at fault.
* [[Act of God]] is an unforseeable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen. 
* [[Necessity (tort)|''Necessity'']] harm done to prevent a greater evil is not actionable even though the harm was caused intentionally. 
* [[Mistake (criminal law)|Mistake]] whether of fact or of law is no defence to action. 
* The law permits use of reasonable force to protect one's person or property. If force is used for self-defence they will not be liable for harm.
* [[Unclean hands]].

In addition to defenses against prosecution and liability, a defendant may also raise a defense of [[justification (jurisprudence)|justification]] – such as [[Right of self-defense|self-defense and defense of others]] or [[defense of property]].

In [[English law]], one could raise the argument of a ''contramandatum'', which was an argument that the plaintiff had no cause for complaint.<ref>((Cite Cyclopaedia 1728|title=Contramandatum|url=http://digicoll.library.wisc.edu/cgi-bin/HistSciTech/HistSciTech-idx?type=turn&entity=HistSciTech.Cyclopaedia01.p0474&id=HistSciTech.Cyclopaedia01&isize=M |volume=1|page=318))</ref>

==Strategies==
The defense in a [[homicide]] case may attempt to present evidence of the victim's character, to try to prove that the victim had a history of violence or of making threats of violence that suggest a violent character.<ref name="behan">((cite journal |last1 = Behan |first1 = Christopher W. |title = When Turnabout is Fair Play: Character Evidence and Self-Defense in Homicide and Assault Cases |journal = Oregon Law Review |date = 2007 |volume = 86 |issue = 3 |pages = 733–796 |url = http://www.law.siu.edu/_common/documents/publications/behan/turnabout.pdf |access-date = 31 July 2017 |url-status = live |archive-url = https://web.archive.org/web/20150915094041/http://www.law.siu.edu/_common/documents/publications/behan/turnabout.pdf |archive-date = 15 September 2015 |df = dmy-all ))</ref><ref>((cite journal |last1 = Kleiss |first1 = Mary K. |title = A New Understanding of Specific Act Evidence in Homicide Cases Where the Accused Claims Self-Defense |journal = Indiana Law Review |date = 1999 |volume = 32 |page = 1439 |url = https://mckinneylaw.iu.edu/ilr/pdf/vol32p1437.pdf |access-date = 31 July 2017 |url-status = live |archive-url = https://web.archive.org/web/20170801050751/https://mckinneylaw.iu.edu/ilr/pdf/vol32p1437.pdf |archive-date = 1 August 2017 |df = dmy-all ))</ref> The goal of presenting character evidence about the victim may be to make more plausible a claim of [[self-defense]],<ref name="behan" /> or in the hope of accomplishing [[jury nullification]] in which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act.<ref>((cite journal |last1 = Imwinkelreid |first1 = Edward J. |title = An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances |journal = University of Richmond Law Review |date = January 2006 |volume = 40 |issue = 2 |page = 426 ))</ref>

== Costs ==
Litigation is expensive and often may last for months or years.  Parties can finance their litigation and pay for their attorneys' fees or other legal costs in a number of ways. A defendant can pay with their own money, through legal defense funds, or [[legal financing]] companies. For example, in the United Kingdom, a defendant's legal fees may be covered by [[legal aid]].<ref>((cite web |title=Legal aid |url=https://www.gov.uk/legal-aid |website=GOV.UK |publisher=Government of the United Kingdom))</ref>

== See also ==
* [[Absolute defense]]
* [[Lawsuit]]
* [[Legal defense fund]]
* [[Legal financing]]
* [[Self-defense]]
* [[Atturnato faciendo vel recipiendo]]<!-- but only because "legal representative" redirects to this article at this time.  Not sure why because this article says nothing about representation?  There needs to be such an article.  -->

==Notes==
((notelist))

==References==
((Reflist))

==External links==
*((Commonscatinline|Legal defenses))

((DEFAULTSORT:Defense (Legal)))
[[Category:Legal defenses| ]]
[[Category:Criminal procedure]]
[[Category:Civil procedure]]
[[Category:Evidence law]]
[[Category:Testimony]]


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