Affirmative Defenses in Ohio

By Brad Koffel

The Ohio Revised Code recognizes Affirmative Defenses to certain crimes and certain offenders. The code section is O.R.C. 2901.05(C). An Affirmative Defenses must be proven by the defendant, at trial, by a preponderance of the evidence (think 51%).

What are Ohio’s recognized Affirmative Defenses?

• Entrapment – essentially, the defendant must prove that the government agents (police, detectives) originated the crime and implanted in the defendant’s mind the disposition to commit the alleged offense and induced its commission so that they could prosecute the defendant. Entrapment is extremely hard to prove at trial. Some judges may not even give an entrapment defense jury instruction. There is quite a bit of case law on entrapment – not many in favor of the accused in Ohio.
• Insanity – this is also known as “NGRI” – Not Guilty by Reason of Insanity. Broadly speaking, a person is NGRI if “at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts”. (R.C. 2901.01(A)(14).
• Self-Defense – a defendant must show that he was not at fault in creating the situation which gave rise to the use of force; he had a bona fide belief that he was in imminent danger of death or great bodily harm, and the only recourse was to use force; and, he did not violate any duty to retreat or avoid the danger. A recent case from the Ohio Supreme Court discussing Self-Defense is State v. Cassano (2002).
• Intoxication – generally, voluntary intoxication is not a defense to a crime. An exception is when specific intent is an essential element of the crime.
• Duress – a defendant must establish that he had a real fear of serious and immediate bodily injury or death to himself or others; that he no reasonable means to escape from the situation; and, as a result, he was forced to participate in the criminal activity.
• Blackout – the offense is available if a crime is predicated upon a “voluntary” act and that the defendant involuntarily lost consciousness.
• Necessity – Ohio law does not have a statutory defense of necessity; however, the common law elements are (a) the harm must be committed under the pressure of physical or natural force, rather than human force; (b) the harm sought to be avoided is greater (or at least equal to) that sought to be prevented by the law defining the offense charged; (c) that the defendant believed at the moment that his act is necessary and is designed to avoid the greater harm; (d) the defendant must be without fault in bringing about the situation; (e) and the harm threatened must be imminent, leaving no alternative by which to avoid the greater harm.

Affirmative defenses must be raised at trial, not in a pre-trial motion to dismiss. A judge must agree to instruct the jury on the Affirmative Defense. The defendant must then convince a jury by a preponderance of the evidence that all the elements of the Affirmative Defense have been met.