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This section presents an overview of the various legal defenses recognized in Florida that may be applicable to your Tampa Bay area criminal case. In many instances, the most viable defense will focus on an overall lack of evidence to sustain the charge and assert that the state cannot (or has not) met its burden of proof. All criminal charges, no matter how benign, must be proven beyond a reasonable doubt. For example, if the sole occupant of a vehicle is stopped by the police, a small quantity of marijuana is found under the front passenger seat, and the person makes no incriminating statements, the defense in that case would likely involve an assertion that the state cannot prove knowledge of its presence (an essential element of the charge) beyond a reasonable doubt. If there has been no formal charge filed, the argument would be made to the state in an effort to preclude that from happening. If the charge has been filed, and the matter is in a trial posture, the argument would be made to the jury in an effort to obtain an acquittal. In any event, the defense is simply "insufficient quantum of proof". The defendant need not prove or disprove anything, nor is he or she required to.

There are other situations, however, where the state is able to prove the elements of the charged offense beyond a reasonable doubt. In these instances, raising what are called "factual defenses" or "affirmative defenses" may present the best option for a favorable outcome. Here, the defense does not dispute that the crime occurred, but asserts that either (1) the defendant did not commit the crime, as would be the case with alibi (a "factual" defense); or (2) the defendant did commit the crime, but there is some recognized legal justification for it, as would be the case with justifiable use of force, an "affirmative" defense.

In most instances, the burden of proof is on the state alone; the defendant is not required to prove his or her innocence. That is one of the fundamental principles of the American system of justice. Raising the type of defenses outlined in this section, however, constitutes an exception to this general principle. Where a factual or affirmative defense is raised, the accused is required to put on evidence to establish its applicability. In some cases, advance notice must be furnished to the prosecution, or the defense cannot be raised at trial (examples include alibi, insanity, and battered wife syndrome). The defendant's burden of proof is delineated by Florida law and can vary, depending on the defense raised. For example, where an insanity defense is raised, the defense must prove that the defendant was insane by "clear and convincing" evidence, which is something less than beyond reasonable doubt. Where the entrapment defense is raised, the accused must establish that he or she was entrapped by "a preponderance of the evidence", which is a "more likely than not" standard and a lesser burden than that which is applies to an insanity defense.

No matter what factual or affirmative defense is raised, the burden of proof always shifts back to the state and the standard is always "beyond a reasonable doubt". For example, in a first degree murder case, the state would be required, during its case-in-chief, to prove the elements of the crime beyond a reasonable doubt (through the introduction of evidence, which would include witness testimony, photographs, physical exhibits, etc.). If the defense was insanity, the burden would shift to the defendant to establish, during his or her case-in-chief, that the defendant was insane at the time the crime was committed (by clear and convincing evidence). This is usually done through expert testimony. The burden would then shift back to the state to prove, beyond a reasonable doubt, that the defendant was not insane at the time the crime was committed. The various legal defenses recognized under Florida law are detailed in this section.

Donald J. Kilfin is an experienced St. Petersburg criminal defense attorney and former Pinellas County state prosecutor. He has prosecuted countless cases wherein many of these defenses were raised, and has raised them successfully, on behalf of his clients, as a criminal defense attorney over the years.

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