affirmative defense in Washington

2020Judge Agid, the author of Galisia, was a member of the Trujillo panel. 2 The same distinction subsequently was made by State v. Frost, 160 Wn.2d 765 , 161 P.3d 361 (2007). 4 No. 36250-7-III State v. Arbogast—Dissent One issue in Riker involved the burden of proof when an affirmative defense of duress is raised. 123 Wn.2d at 366-69 .

2010Accordingly, an instruction on duress — an affirmative defense that the defendant must prove by a preponderance of the evidence, see State v. Riker, 123 Wn.2d 351, 368-69 , 869 P.2d 43 (1994) — may be appropriate in such a case. ¶21 Due process requires the State to prove beyond a reasonable doubt all elements of a crime, including that the defendant committed a volitional act.

2021State v. Lively, 130 Wn.2d 1, 13 , 921 P.2d 1035 (1996). 17 “Defendants should ultimately be responsible for demonstrating that they were improperly induced to commit a criminal act which they otherwise would not have committed.” Id.8 The affirmative defense of entrapment “will not be allowed when the evidence indicates merely that the defendant was given an opportunity to commit the crime with which he was charged.” State v. Morgan, 9 Wn. App. 757, 759 , 515 P.2d 829 , review denied, 83 Wn.2d 1004 (1973).

2021State v. Lively, 130 Wn.2d 1, 13 , 921 P.2d 1035 (1996). 17 “Defendants should ultimately be responsible for demonstrating that they were improperly induced to commit a criminal act which they otherwise would not have committed.” Id.8 The affirmative defense of entrapment “will not be allowed when the evidence indicates merely that the defendant was given an opportunity to commit the crime with which he was charged.” State v. Morgan, 9 Wn. App. 757, 759 , 515 P.2d 829 , review denied, 83 Wn.2d 1004 (1973).

2026The defendant must prove an affirmative defense by a preponderance of the evidence.” State v. Fry, 168 Wn.2d 1, 7 , 228 P.3d 1 (2010) (citations omitted).

2026The defendant must prove an affirmative defense by a preponderance of the evidence.” State v. Fry, 168 Wn.2d 1, 7 , 228 P.3d 1 (2010) (citations omitted).

2021The court in Cleppe recognized the inherent “harshness” of a law strictly criminalizing all drug possession and sought to mitigate the unjust consequences of such a law by adopting the affirmative defense of unwitting possession. 96 Wn.2d at 381 .

2021Bradshaw nevertheless reiterated this affirmative defense and justified doing so because it “ameliorates the harshness of a strict liability crime.” 152 Wn.2d at 538 (citing Cleppe, 96 Wn.2d at 380-81 ).

2024“The Sixth Amendment right to control one’s defense encompasses the decision to present an affirmative defense.” State v. Coristine, 177 Wn.2d 370, 376 , 300 P.3d 400 (2013).

2024“The Sixth Amendment right to control one’s defense encompasses the decision to present an affirmative defense.” State v. Coristine, 177 Wn.2d 370, 376 , 300 P.3d 400 (2013).

2025A defendant’s “engag[ement] in discovery following the assertion of an affirmative defense does not indicate waiver.” King v. Snohomish County, 146 Wn.2d 420, 425 , 47 P.3d 563 (2002).

2025A defendant’s “engag[ement] in discovery following the assertion of an affirmative defense does not indicate waiver.” King v. Snohomish County, 146 Wn.2d 420, 425 , 47 P.3d 563 (2002).

2025State v. Ramos, 187 Wn.2d 420, 443 (2017).

2019“Miller ‘establishes an affirmative requirement that courts fully explore the impact of the defendant’s juvenility on the sentence rendered.’” Ramos, 187 Wn.2d at 443 (quoting Aiken v. Byars, 410 S.C. 534, 543 , 765 S.E.2d 572 (2014)).

2018App. at 231 , the court stated that the statutory defense of uncontrollable circumstances “appears to displace the need to give a general necessity defense instruction.” Similarly, the comment to WPIC 19.17, which involves the affirmative defense of uncontrollable circumstances, notes that the statutory defense of uncontrollable circumstances “most likely supplants the common law defense of necessity.” On the other hand, State v. Kurtz, 178 Wn.2d 466 , 309 P.3d 472 (2013), held that medical necessity remained an available defense to a marijuana prosecution.

2018App. at 231 , the court stated that the statutory defense of uncontrollable circumstances “appears to displace the need to give a general necessity defense instruction.” Similarly, the comment to WPIC 19.17, which involves the affirmative defense of uncontrollable circumstances, notes that the statutory defense of uncontrollable circumstances “most likely supplants the common law defense of necessity.” On the other hand, State v. Kurtz, 178 Wn.2d 466 , 309 P.3d 472 (2013), held that medical necessity remained an available defense to a marijuana prosecution.

2020See Haslund v. City of Seattle, 86 Wn.2d 607, 620-21 , 547 P.2d 1221 (1976) (“Since the statute of limitations is an affirmative defense, . . . the burden was on [the party asserting the defense] to prove those facts which established the defense.”). 9 Pena disagrees and relies on Kelly in support of her contention that the CIR ended in 2012.

2020See Haslund v. City of Seattle, 86 Wn.2d 607, 620-21 , 547 P.2d 1221 (1976) (“Since the statute of limitations is an affirmative defense, . . . the burden was on [the party asserting the defense] to prove those facts which established the defense.”). 9 Pena disagrees and relies on Kelly in support of her contention that the CIR ended in 2012.

2024App. 2d at 756-59 (defendant waives right to raise statute of limitations on appeal by not raising it in trial court, and express waiver is not required); King v. Snohomish County, 146 Wn.2d 420, 424 , 47 P.3d 563 (2002) (civil defendant “may waive an affirmative defense if either (1) assertion of the defense is inconsistent with defendant’s prior behavior or (2) the defendant has been dilatory in asserting the defense” (citing Lybbert v. Grant County, 141 Wn.2d 29, 39 , 1 P.3d 1124 (2000))); Matthies v. Knodel, 19 Wn.

2024App. 2d at 756-59 (defendant waives right to raise statute of limitations on appeal by not raising it in trial court, and express waiver is not required); King v. Snohomish County, 146 Wn.2d 420, 424 , 47 P.3d 563 (2002) (civil defendant “may waive an affirmative defense if either (1) assertion of the defense is inconsistent with defendant’s prior behavior or (2) the defendant has been dilatory in asserting the defense” (citing Lybbert v. Grant County, 141 Wn.2d 29, 39 , 1 P.3d 1124 (2000))); Matthies v. Knodel, 19 Wn.

2014In its most recent decision, Deer, the court held that while a defendant "is entitled to argue a lack of conscious action, [the] claim is properly treated as an affirmative defense, much like claims of involuntary intoxication, insanity, or unwitting possession." 175 Wn.2d at 733 .

2014See State v. Deer. 175 Wn.2d 725, 733 , 287 P.3d 539 (2012) (holding lack of volition is an affirmative defense); State v. Utter, 4 Wn.

2021App 2d. 287, as decisions that “led [the attorney] to believe Mr. Bertolacci had a 4 “‘The trial court is justified in denying a request for [an affirmative defense] instruction only where no credible evidence appears in the record to support [it].’” State v. Fisher, 185 Wn.2d 836, 849 , 374 P.3d 1185 (2016) (alterations in original) (quoting State v. McCullum, 98 Wn.2d 484, 488 , 656 P.2d 1064 (1983) (plurality opinion)).

2021App 2d. 287, as decisions that “led [the attorney] to believe Mr. Bertolacci had a 4 “‘The trial court is justified in denying a request for [an affirmative defense] instruction only where no credible evidence appears in the record to support [it].’” State v. Fisher, 185 Wn.2d 836, 849 , 374 P.3d 1185 (2016) (alterations in original) (quoting State v. McCullum, 98 Wn.2d 484, 488 , 656 P.2d 1064 (1983) (plurality opinion)).

2024However, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense ... negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)).

2024However, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense ... negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)).

2024However, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense ... negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)).

2024However, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense ... negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)).

2021Bradshaw nevertheless reiterated this affirmative defense and justified doing so because it “ameliorates the harshness of a strict liability crime.” 152 Wn.2d at 538 (citing Cleppe, 96 Wn.2d at 380-81 ).

2018App. 235, 251 , 336 P.3d 654 (2014)(explaining that because the defendant had the burden to prove that he had regained his sanity and the trial court did not make any findings about his mental health, he bore the consequences of failing to obtain such a finding), aff'd, 184 Wn.2d 321 , 358 P.3d 385 (2015). 8 RCW 69.50.4013. 9 State v. Bradshaw, 152 Wn.2d 528, 537-38 , 98 P.3d 1190 (2004). -3- No. 76758-5-1 /4 substance and the fact of possession but not that the defendant knowingly possessed the substance.1° To avoid criminal liability, the defendant can prove, by a preponderance of the eviden

2014Although under Votava, a defendant can assert the affirmative defense if another person has moved the vehicle off the roadway at the defendant' s request, that is not what happened here. 149 Wn.2d at 188 .

2013This court granted discretionary review of the trial court’s refusal to instruct on the affirmative defense. ¶2 Unlike in State v. Votava, 149 Wn.2d 178, 183 , 66 P.3d 1050 (2003), there is no evidence that Mr. Mendoza Godoy directed the car to be moved or moved it.

2021The starting point for analyzing these two competing contentions is that “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense . . . negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)); see State v. W.R., 181 Wn.2d 757, 765 , 336 P.3d 1134 (2014) (“[W]hen a defense necessarily negates an element of the crime, it violates due process to place the burden of

2021The starting point for analyzing these two competing contentions is that “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense . . . negate[s] an element of the crime.’” Smith v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L. Ed. 2d 570 (2013) (quoting Martin v. Ohio, 480 U.S. 228, 237 , 107 S. Ct. 1098 , 94 L. Ed. 2d 267 (1987) (Powell, J., dissenting)); see State v. W.R., 181 Wn.2d 757, 765 , 336 P.3d 1134 (2014) (“[W]hen a defense necessarily negates an element of the crime, it violates due process to place the burden of

2016Under this statute, the State must prove that the defendant possessed the substance and that it was a controlled substance.8 The State is not required to prove knowledge about either possession or the substance’s controlled nature.9 To lessen “‘the harshness of the almost strict criminal liability” of this statute, the supreme court created the affirmative defense of “unwitting possession.”1° Once the State establishes a prima facie case, the defendant may establish that he unknowingly possessed the controlled substance.11 Because unwitting possession is an affirmative defense, the defendant b

2016Under this statute, the State must prove that the defendant possessed the substance and that it was a controlled substance.8 The State is not required to prove knowledge about either possession or the substance’s controlled nature.9 To lessen “‘the harshness of the almost strict criminal liability” of this statute, the supreme court created the affirmative defense of “unwitting possession.”1° Once the State establishes a prima facie case, the defendant may establish that he unknowingly possessed the controlled substance.11 Because unwitting possession is an affirmative defense, the defendant b

2025“Because recreational use immunity is an affirmative defense, the landowner asserting it carries the burden of proving entitlement to immunity under the statute.” Camicia, 179 Wn.2d at 693 . 3 Here, the parties do not dispute the first two elements, that the basketball court was (1) open to members of the public (2) for recreational purposes.

2020Furthermore, “[b]ecause recreational use immunity is an affirmative defense, the landowner asserting it carries 17 53588-2-II the burden of proving entitlement to immunity under the statute.” Camicia, 179 Wn.2d at 693 .

2009"The Act provides an affirmative defense for patients and caregivers against Washington laws relating to marijuana." Shepherd, 110 Wash.App. at 549 , 41 P.3d 1235 ; former RCW 69.51A.040(2). ¶ 14 Under former RCW 69.51A.040(1): If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established the affirmative defense to such charges by proof of his or her compliance with the requirements prov

2009"The Act provides an affirmative defense for patients and caregivers against Washington laws relating to marijuana." Shepherd, 110 Wash.App. at 549 , 41 P.3d 1235 ; former RCW 69.51A.040(2). ¶ 14 Under former RCW 69.51A.040(1): If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established the affirmative defense to such charges by proof of his or her compliance with the requirements prov

2024However, the analysis that Emerson relies on in Fisher and Buzzell did not regard ineffective assistance of counsel but, rather, regarded a trial court’s denial of a defendant’s request to instruct the jury on a certain affirmative defense. 185 Wn.2d at 851-52 ; 148 Wn. App. at 598-600 .

2021App 2d. 287, as decisions that “led [the attorney] to believe Mr. Bertolacci had a 4 “‘The trial court is justified in denying a request for [an affirmative defense] instruction only where no credible evidence appears in the record to support [it].’” State v. Fisher, 185 Wn.2d 836, 849 , 374 P.3d 1185 (2016) (alterations in original) (quoting State v. McCullum, 98 Wn.2d 484, 488 , 656 P.2d 1064 (1983) (plurality opinion)).

2026In the context of civil contempt, “ ‘the law presumes that one is capable of performing those actions required by the court . . . [and the] inability to comply is an affirmative defense.’ ” Moreman v. Butcher, 126 Wn.2d 36, 40 , 891 P.2d 725 (1995) (alterations in original) (quoting King v. Dep’t of Soc. & Health Servs., 110 Wn.2d 793, 804 , 756 P.2d 1303 (1988)).

2026In the context of civil contempt, “ ‘the law presumes that one is capable of performing those actions required by the court . . . [and the] inability to comply is an affirmative defense.’ ” Moreman v. Butcher, 126 Wn.2d 36, 40 , 891 P.2d 725 (1995) (alterations in original) (quoting King v. Dep’t of Soc. & Health Servs., 110 Wn.2d 793, 804 , 756 P.2d 1303 (1988)).

2024According to Roberts, his trial counsel’s failure to raise the affirmative defense was neither legitimate nor reasonable strategy because the affirmative defense was established by a preponderance of the evidence 6 and the “court would have been required to apply it if counsel requested it.” RCW 9A.32.030(1)(c), in relevant part, provides as follows: [I]n any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant: (i) Did not com

2024According to Roberts, his trial counsel’s failure to raise the affirmative defense was neither legitimate nor reasonable strategy because the affirmative defense was established by a preponderance of the evidence 6 and the “court would have been required to apply it if counsel requested it.” RCW 9A.32.030(1)(c), in relevant part, provides as follows: [I]n any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant: (i) Did not com

2021“In evaluating whether the evidence is sufficient to support a jury instruction on an affirmative defense, the court must interpret it most strongly in favor of the defendant and must not weigh the proof or judge the witnesses’ credibility, which are exclusive functions of the jury.’” George, 146 Wn. App. at 915 (quoting State v. May, 100 Wn. App. 478, 482 , 997 P.2d 956 (2000)).

2021“In evaluating whether the evidence is sufficient to support a jury instruction on an affirmative defense, the court must interpret it most strongly in favor of the defendant and must not weigh the proof or judge the witnesses’ credibility, which are exclusive functions of the jury.’” George, 146 Wn. App. at 915 (quoting State v. May, 100 Wn. App. 478, 482 , 997 P.2d 956 (2000)).

2020Judge Agid, the author of Galisia, was a member of the Trujillo panel. 2 The same distinction subsequently was made by State v. Frost, 160 Wn.2d 765 , 161 P.3d 361 (2007). 4 No. 36250-7-III State v. Arbogast—Dissent One issue in Riker involved the burden of proof when an affirmative defense of duress is raised. 123 Wn.2d at 366-69 .

2020Judge Agid, the author of Galisia, was a member of the Trujillo panel. 2 The same distinction subsequently was made by State v. Frost, 160 Wn.2d 765 , 161 P.3d 361 (2007). 4 No. 36250-7-III State v. Arbogast—Dissent One issue in Riker involved the burden of proof when an affirmative defense of duress is raised. 123 Wn.2d at 366-69 .

2010As we stressed in State v. Anderson, an offense statute’s lack of an express provision for an affirmative defense of unwitting conduct or lack of knowledge indicates that intent is an element of the offense. 141 Wn.2d 357, 362-63 , 5 P.3d 1247 (2000).

2010As we stressed in State v. Anderson, an offense statute’s lack of an express provision for an affirmative defense of unwitting conduct or lack of knowledge indicates that intent is an element of the offense. 141 Wn.2d 357, 362-63 , 5 P.3d 1247 (2000).