affirmative defense in Montana

1979Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.” Patterson, 432 U.S. at 198 , 97 S.Ct. at 2320 , 53 L.Ed.2d at 284 .

1979Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.” Patterson, 432 U.S. at 198 , 97 S.Ct. at 2320 , 53 L.Ed.2d at 284 .

2012While the State “ ‘has the burden of proving beyond a reasonable doubt every element of the offense charged, . . . the defendant, if he raises an affirmative defense, has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt.’ ” State v. Matz, 2006 MT 348, ¶ 15 , 335 Mont. 201 , 150 P.3d 367 (quoting State v. Daniels, 210 Mont. 1, 16 , 682 P.2d 173, 181 (1984)). ¶36 Automatism refers to behavior performed in a state of unconsciousness or semi-consciousness such that the behavior cannot be deemed volitional.

2012While the State “ ‘has the burden of proving beyond a reasonable doubt every element of the offense charged, ... the defendant, if he raises an affirmative defense, has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt.’ ” State v. Matz, 2006 MT 348, ¶ 15 , 335 Mont. 201 , 150 P.3d 367 (quoting State v. Daniels, 210 Mont. 1, 16 , 682 P.2d 173, 181 (1984)). ¶36 Automatism refers to behavior performed in a state of unconsciousness or semi-consciousness such that the behavior cannot be deemed volitional.

1982The jury here was instructed as follows: “You are instructed that a defense of justifiable use of force is an affirmative defense and that the defendant has the burden of producing sufficient evidence on the same issue to raise a reasonable doubt of his guilt.” This instruction is in keeping with section 45-3-115, MCA, and State v. Grady (1975), 166 Mont. 168 , 531 P.2d 681 .

1982The jury here was instructed as follows: “You are instructed that a defense of justifiable use of force is an affirmative defense and that the defendant has the burden of producing sufficient evidence on the same issue to raise a reasonable doubt of his guilt.” This instruction is in keeping with section 45-3-115, MCA, and State v. Grady (1975), 166 Mont. 168 , 531 P.2d 681 .

1997When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis added.] “An affirmative defense is generally waived if not set forth affirmatively.” Nimmick v. Hart (1991), 248 Mont. 1, 8 , 808 P.2d 481, 486 ; Pracht v. Rollins (1989), 239 Mont. 62, 68 , 779 P.2d 57, 61 ; Chandler v. Madsen (1982), 197 Mont. 234, 241 , 642 P.2d 1028, 1032 .

1997When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis added.] “An affirmative defense is generally waived if not set forth affirmatively.” Nimmick v. Hart (1991), 248 Mont. 1, 8 , 808 P.2d 481, 486 ; Pracht v. Rollins (1989), 239 Mont. 62, 68 , 779 P.2d 57, 61 ; Chandler v. Madsen (1982), 197 Mont. 234, 241 , 642 P.2d 1028, 1032 .

1980Defendant maintains the State was required to prove “. . . that defendant had, and could have had, a particular state of mind which is an element of the offense,” and that by making diminished capacity an affirmative defense, the trial judge unconstitutionally shifted to defendant the burden of disproving an essential element of the offenses charged. “. . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship (1970), 397 U.S. 358, 364 , 90 S.Ct. 1068, 1

1980Defendant maintains the State was required to prove “. . . that defendant had, and could have had, a particular state of mind which is an element of the offense,” and that by making diminished capacity an affirmative defense, the trial judge unconstitutionally shifted to defendant the burden of disproving an essential element of the offenses charged. “. . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship (1970), 397 U.S. 358, 364 , 90 S.Ct. 1068, 1

2009Relying primarily upon McGuire , and Stephens v. Conley, 48 Mont. 352 , 138 P. 189 (1914), as well as the Montana Rules of Civil Procedure, the Defendants assert that advice of counsel may be raised by a general denial, as was done in this case, and then later be asserted as a complete and affirmative defense.

2009Relying primarily upon McGuire , and Stephens v. Conley, 48 Mont. 352 , 138 P. 189 (1914), as well as the Montana Rules of Civil Procedure, the Defendants assert that advice of counsel may be raised by a general denial, as was done in this case, and then later be asserted as a complete and affirmative defense.

1983The Commission Comment to our statute defining entrapment, section 45-2-213, MCA, states that ‘[t]he defense of entrapment generally follows the rule stated by the majority in the Sorrells case.’ (Sorrells v. United States (1932), 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 .) Entrapment is, of course, an affirmative defense, and the burden of proving it rests on the defendant. [State v.] LaCario, [ 163 Mont. 511 ], 518 P.2d 982, 985 ; State v. White (1969), 153 Mont. 193 , 456 P.2d 54, 56 ; O’Donnell, [ 138 Mont. 123 ], 354 P.2d 1105, 1106 ; Parr, 283 P.2d 1086, 1089 .

1983The Commission Comment to our statute defining entrapment, section 45-2-213, MCA, states that `[t]he defense of entrapment generally follows the rule stated by the majority in the Sorrells case.' ( Sorrells v. United States (1932), 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 .) Entrapment is, of course, an affirmative defense, and the burden of proving it rests on the defendant. [ State v. ] LaCario [ 163 Mont. 511 ], 518 P.2d 982, 985 ; State v. White (1969), 153 Mont. 193 , 456 P.2d 54, 56 ; [ State v. ] O'Donnell [ 138 Mont. 123 ], 354 P.2d 1105, 1106 ; [ State v.] Parr [ 129

2025“Rule 8(c) is not absolute; a district court may allow a defendant to amend its answer to include an affirmative defense pursuant to Rule 15.” Keller v. Dooling, 248 Mont. 535, 542 , 813 P.2d 437, 441 (1991); Johnson v. District VII, 2009 MT 86, ¶ 25 , 349 Mont. 529 , 204 P.3d 714 . 20 ¶36 Petra asserted its affirmative defense of arbitration within the pleading stage where it was expressly permitted to do so.

2025“Rule 8(c) is not absolute; a district court may allow a defendant to amend its answer to include an affirmative defense pursuant to Rule 15.” Keller v. Dooling, 248 Mont. 535, 542 , 813 P.2d 437, 441 (1991); Johnson v. District VII, 2009 MT 86, ¶ 25 , 349 Mont. 529 , 204 P.3d 714 . 20 ¶36 Petra asserted its affirmative defense of arbitration within the pleading stage where it was expressly permitted to do so.

2017State v. Erickson, 2014 MT 304, ¶ 25 , 377 Mont. 84 , 338 P.3d 598 .

2017State v. Erickson, 2014 MT 304, ¶ 25 , 377 Mont. 84 , 338 P.3d 598 .

2012Leprowse , ¶ 11 (citing State v. Reynolds, 2004 MT 364, ¶ 9 , 324 Mont. 495 , 104 P.3d 1056 ).

2012Leprowse , ¶ 11 (citing State v. Reynolds, 2004 MT 364, ¶ 9 , 324 Mont. 495 , 104 P.3d 1056 ).

2011See §45-2-212, MCA; State v. Leprowse, 2009 MT 387 , 353 Mont. 312 , 221 P.3d 648 (a defendant may assert the affirmative defense of compulsion to a charge of DUI).

2011See §45-2-212, MCA; State v. Leprowse, 2009 MT 387 , 353 Mont. 312 , 221 P.3d 648 (a defendant may assert the affirmative defense of compulsion to a charge of DUI).

2010Jur. 2d Depositions and Discovery § 45 (2002) (citing Martin v. Paunovich, 632 So. 2d 611 (Fla. 5th Dist.

2010Jur. 2d Depositions and Discovery § 45 (2002) (citing Martin v. Paunovich, 632 So. 2d 611 (Fla. 5th Dist.

2009In response, the Defendants asserted that they had not waived the affirmative defense of advice of counsel under the authority of McGuire v. Armitage, 184 Mont. 407 , 603 P.2d 253 (1979).

2009In response, the Defendants asserted that they had not waived the affirmative defense of advice of counsel under the authority of McGuire v. Armitage, 184 Mont. 407 , 603 P.2d 253 (1979).

2009Although this issue has not been previously raised or pled as an affirmative defense during the course of these proceedings, the Defendants nonetheless argue that it merits consideration because challenges to subject matter jurisdiction may be raised at any time, including for the first time on appeal. ¶35 While we agree with the Defendants that challenges to subject matter jurisdiction may be considered for the first time on appeal, see Stanley v. Lemire, 2006 MT 304, ¶¶ 29-32 , 334 Mont. 489 , 148 P.3d 643 , given the procedural posture of this case and the previous rulings by the federal ba

2009Although this issue has not been previously raised or pled as an affirmative defense during the course of these proceedings, the Defendants nonetheless argue that it merits consideration because challenges to subject matter jurisdiction may be raised at any time, including for the first time on appeal. ¶35 While we agree with the Defendants that challenges to subject matter jurisdiction may be considered for the first time on appeal, see Stanley v. Lemire, 2006 MT 304, ¶¶ 29-32 , 334 Mont. 489 , 148 P.3d 643 , given the procedural posture of this case and the previous rulings by the federal ba

1981However, “[t]he law in Montana is that although the burden of persuasion remains on the State, in order to avail himself of the affirmative defense of self-defense, the defendant has the burden of producing sufficient evidence on the issues to raise a reasonable doubt of his guilt.” State v. Lopez (1980), 185 Mont. 187 , 605 P.2d 178, 182 , 37 St.Rep. 36 , 41; State v. Cooper (1979), 180 Mont. 68 , 589 P.2d 133, 136 , 36 St.Rep. 30 , 33; State v. Grady (1975), 166 Mont. 168, 175 , 531 P.2d 681, 684 .

1981However, “[t]he law in Montana is that although the burden of persuasion remains on the State, in order to avail himself of the affirmative defense of self-defense, the defendant has the burden of producing sufficient evidence on the issues to raise a reasonable doubt of his guilt.” State v. Lopez (1980), 185 Mont. 187 , 605 P.2d 178, 182 , 37 St.Rep. 36 , 41; State v. Cooper (1979), 180 Mont. 68 , 589 P.2d 133, 136 , 36 St.Rep. 30 , 33; State v. Grady (1975), 166 Mont. 168, 175 , 531 P.2d 681, 684 .

1999In Daniels, 210 Mont. at 15-16 , 682 P.2d at 181 , we held that as an affirmative defense, justifiable use of force requires the defendant to produce sufficient evidence on the issue to raise a reasonable doubt of his guilt and that the State’s burden is to prove beyond a reasonable doubt the elements of the offense charged, which does not include the absence of justification. ¶23 Longstreth cites State v. Azure (1979), 181 Mont. 47 , 591 P.2d 1125 , and Graves , and argues that our cases have confused this issue.

1999In Daniels, 210 Mont. at 15-16 , 682 P.2d at 181 , we held that as an affirmative defense, justifiable use of force requires the defendant to produce sufficient evidence on the issue to raise a reasonable doubt of his guilt and that the State’s burden is to prove beyond a reasonable doubt the elements of the offense charged, which does not include the absence of justification. ¶23 Longstreth cites State v. Azure (1979), 181 Mont. 47 , 591 P.2d 1125 , and Graves , and argues that our cases have confused this issue.

1997When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis added.] “An affirmative defense is generally waived if not set forth affirmatively.” Nimmick v. Hart (1991), 248 Mont. 1, 8 , 808 P.2d 481, 486 ; Pracht v. Rollins (1989), 239 Mont. 62, 68 , 779 P.2d 57, 61 ; Chandler v. Madsen (1982), 197 Mont. 234, 241 , 642 P.2d 1028, 1032 .

1997When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis added.] “An affirmative defense is generally waived if not set forth affirmatively.” Nimmick v. Hart (1991), 248 Mont. 1, 8 , 808 P.2d 481, 486 ; Pracht v. Rollins (1989), 239 Mont. 62, 68 , 779 P.2d 57, 61 ; Chandler v. Madsen (1982), 197 Mont. 234, 241 , 642 P.2d 1028, 1032 .

1983The Commission Comment to our statute defining entrapment, section 45-2-213, MCA, states that ‘[t]he defense of entrapment generally follows the rule stated by the majority in the Sorrells case.’ (Sorrells v. United States (1932), 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 .) Entrapment is, of course, an affirmative defense, and the burden of proving it rests on the defendant. [State v.] LaCario, [ 163 Mont. 511 ], 518 P.2d 982, 985 ; State v. White (1969), 153 Mont. 193 , 456 P.2d 54, 56 ; O’Donnell, [ 138 Mont. 123 ], 354 P.2d 1105, 1106 ; Parr, 283 P.2d 1086, 1089 .

1983The Commission Comment to our statute defining entrapment, section 45-2-213, MCA, states that ‘[t]he defense of entrapment generally follows the rule stated by the majority in the Sorrells case.’ (Sorrells v. United States (1932), 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 , 86 A.L.R. 249 .) Entrapment is, of course, an affirmative defense, and the burden of proving it rests on the defendant. [State v.] LaCario, [ 163 Mont. 511 ], 518 P.2d 982, 985 ; State v. White (1969), 153 Mont. 193 , 456 P.2d 54, 56 ; O’Donnell, [ 138 Mont. 123 ], 354 P.2d 1105, 1106 ; Parr, 283 P.2d 1086, 1089 .

1980See, State v. Doss (1977), 116 Ariz. 156 , 568 P.2d 1054 ; Bethea v. United States (D.C.App. 1976), 365 A.2d 64 ; cases collected in 22 A.L.R.3d 1228 , 1235-1238.

1980See, State v. Doss (1977), 116 Ariz. 156 , 568 P.2d 1054 ; Bethea v. United States (D.C.App. 1976), 365 A.2d 64 ; cases collected in 22 A.L.R.3d 1228 , 1235-1238.