As stated in The Legal System in the United States, a criminal defendant will be acquitted if the prosecution cannot prove every element of the offense beyond a reasonable doubt. In certain cases, the defendant can either denythat a criminal element(s) exists or simply sit back and wait for the prosecution to fail in meeting its burden of proof. This legal strategy is sometimes referred to as either adenial or failure of proof defense.
An affirmative defense is not connected to the prosecution’s burden of proof. When the defendant asserts an affirmative defense, the defendant raises a new issue that must be proven to a certain evidentiary standard. State statutes often specify whether a defense is affirmative. The Model Penal Code defines an affirmative defense as a defense that is deemed affirmative in the Code or a separate statute, or that “involves a matter of excuse or justification peculiarly within the knowledge of the defendant” (Model Penal Code § 1.12 (3) (c)). Procedurally, the defendant must assert any affirmative defense before or during the trial, or the defense cannot be used as grounds for an appeal.
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