affirmative defense in Arizona

2025In response to jurors’ questions, Peterson testified that: (1) Pam evaded the spray of bullets because “[s]he was back several feet” and he “was [] very cautious not to shoot [his] wife,” and (2) he took the safety off his weapon in the hallway, before he heard any screaming outside. ¶24 “Justification is not an affirmative defense that the defendant must prove.” State v. King, 225 Ariz. 87, 89, ¶ 6 (2010).

2024Jury instructions must not “mislead[] the jury.” Ewer, 254 Ariz. at 329, ¶ 11. ¶22 To resolve this issue, we examine the final jury instructions and the related statutes governing self-defense and justification, mindful 7 STATE v. SULU-KERR Opinion of the Court that “[j]ustification is not an affirmative defense that the defendant must prove.” State v. King, 225 Ariz. 87, 89, ¶ 6 (2010).

2024Fields, 219 Ariz. at 574 , ¶¶ 27–29; see Harding v. Ariz. Bd. of Dental Exam'rs, 1 CA-CV 18-0597, 2019 WL 6713433 , at *3, ¶ 17 (Ariz. App. Dec. 10, 2019) (mem. decision) (recognizing the statute of limitations is an affirmative defense that may be waived by litigation conduct).

2017We note, however, that evidence in Cortez established far more than a mere failure to plead arbitration as an affirmative defense; the defendant there also "participated substantially in the litigation and thereby exhibited additional conduct inconsistent with enforcing tire [arbitration] agreement." 226 Ariz. at 211, ¶ 6 , 245 P.3d 892 ; see City of Phoenix v. Fields, 219 Ariz. 568, 575, ¶ 30, n.4 , 201 P.3d 529, 536 (2009) (party may waive arbitration by "participating] substantially in litigation without promptly seeking an order from the court compelling arbitration”).

2023Although Cruz filed a notice stating he will raise two defenses at trial (mere presence and insufficiency of evidence), he did not assert legal insanity as a defense. ¶16 In Mott, this Court held “Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.” 187 Ariz. at 541 .

2018Because the legislature had purposely declined to adopt a 1962 Model Penal Code provision that permitted a diminished-capacity defense to a criminal charge, we concluded that "Arizona does not allow evidence of a defendant's mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime." Id . at 540-41, 931 P.2d at 1050-51 ; see also A.R.S. § 13-502 (allowing only mental disorders or defects that constitute legal insanity as a defense to criminal responsibility); Clark v. Arizona , 548 U.S. 735 , 762, 126 S.Ct. 2709 , 165 L.Ed.2d 842 (2006) ("

2021See State v. Holle, 240 Ariz. 300, 304, ¶ 19 (2016) (“[T]he [pre-2018 amendment] statutory scheme clearly and unambiguously identifies the elements of . . . sexual abuse, . . . does not include sexual motivation as an element the state must prove, and instead unequivocally identifies lack of sexual motivation as an affirmative defense.”). ¶8 Second, Simpson argues the sexual abuse statute is unconstitutional because it “allows for punishment to be enhanced twice based solely upon the victim’s age.” By pleading guilty, however, Simpson waived any challenge to the statute’s constitutionality.

2020Id. at *4, ¶¶ 13–18; see State v. Hyde, 186 Ariz. 252 , 272–75 (1996) (good-faith exception applies even if the issuing magistrate does not fulfill his or her constitutional duty to inquire into the basis of the complaint before finding probable cause). 4 On the merits, our supreme court in State v. Holle expressly rejected the argument Macias raises. 240 Ariz. 300, 308, ¶ 40 (2016) (“Treating lack of sexual motivation under [A.R.S.] § 13-1407(E) as an affirmative defense which a defendant must prove does not offend due process.”); State v. Chavez, 243 Ariz. 313 , 314, ¶ 4, n.2, 318–19, ¶ 17 (

2025Thus, “an affirmative defense is a matter of avoidance of culpability even if the State proves the offense beyond a reasonable doubt.” State v. Farley, 199 Ariz. 542 , 544 ¶ 11 (App. 2001). ¶15 In other words, by requesting a justification defense instruction, the defendant argues that even if he committed the alleged act, he is not criminally liable because he was justified in committing the act.

2016Where instead it excuse[s] conduct that would otherwise be punishable, but does not controvert any of the elements of the offense itself, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.” Smith v. United States, 133 S. Ct. 714, 719 (2013) (internal quotation marks and citations omitted); see Casey, 205 Ariz. at 366 ¶ 30, 71 P.3d at 358 (holding that “the legislature has the constitutional authority to shift the burden of proof” for an affirmative defense to the defendant); Farley, 199 Ariz. at 545 ¶ 13, 19 P.3d at 1261 (“although due process requires

2014Co. v. Burke, 204 Ariz. 251 , 254 ¶ 10, 63 P.3d 282, 285 (2003). ¶ 9 In State Farm v. Lee, we adopted the following criteria, referred to as the Hearn test, for determining whether the attorney-client privilege has been waived when a litigant’s mental state is at issue: “(1) [The] assertion of the privilege was a result of some affirmative act, such as filing suit [or raising an affirmative defense], by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the ease; and (3) application of the privilege would h

2014Co. v. Burke, 204 Ariz. 251 , 254 ¶ 10, 63 P.3d 282, 285 (2003). ¶9 In State Farm v. Lee, we adopted the following criteria, referred to as the Hearn test, for determining whether the attorney–client privilege has been waived when a litigant’s mental state is at issue: 3 “(1) [The] assertion of the privilege was a result of some affirmative act, such as filing suit [or raising an affirmative defense], by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would

2025See Patterson v. New York, 432 U.S. 197 , 206–07 (1977) (An affirmative defense “does not serve to negative any facts of the crime which the State is to prove in order to convict . . . .”).

2015But, due process “does not require the state to disprove a defendant’s affirmative defense unless the defense negates ‘any facts of the crime which the State [must] prove.’ ” State v. Jeffrey, 203 Ariz. Ill, ¶¶ 7, 9, 50 P.3d 861, 863-64 (App.2002), quoting Patterson, 432 U.S. at 207 , 97 S.Ct. 2319 (alteration in Jeffrey ). ¶ 25 In Simpson, the court relied on § 13-205(A) and Sanderson’s characterization of § 13-1407(E) as an “affirmative defense” to conclude the burden of proof must lie with the defendant.

2016Disagreeing with Simpson, 217 Ariz. at 326 ¶ 19, 173 P.3d at 1030 , the court held that “§ 13-1407(E) is a defense but not an affirmative defense.” Holle, 238 Ariz. at 226 ¶¶ 25–26, 358 P.3d at 647 .

2016Disagreeing with Simpson, 217 Ariz. at 326 ¶ 19, 173 P.3d at 1030 , the court held that “§ 13-1407(E) is a defense but not an affirmative defense.” Holle, 238 Ariz. at 226 ¶¶ 25–26, 358 P.3d at 647 .

2015See id.; see also Knight v. Rice, 83 Ariz. 379, 381 , 321 P.2d 1037, 1038 (1958) (“Estoppel is an affirmative defense; the party relying thereon 7 Appellants also contend that the superior court erred in finding that their claims were barred by the statute of limitations.

2015See id.; see also Knight v. Rice, 83 Ariz. 379, 381 , 321 P.2d 1037, 1038 (1958) (“Estoppel is an affirmative defense; the party relying thereon 7 Appellants also contend that the superior court erred in finding that their claims were barred by the statute of limitations.

2014Thus, the Act directs broad common law liability for the State while, at the same time, listing certain exceptions to such liability, including the affirmative defense in AR.S. § 12-820.03. 3 Accordingly, in Arizona, “the right to sue the [S]tate is not a statutory grant, as is the case in several other states; rather, it is a common law rule in Arizona that the government is liable for its tortious conduct and immunity is the exception.” Pritchard v. State, 163 Ariz. 427, 431 , 788 P.2d 1178, 1182 (1990); accord Galati v. Lake Havasu City, 186 Ariz. 131, 134 , 920 P.2d 11, 14 (App.1996) (“The

2014Thus, the Act directs broad common law liability for the State while, at the same time, listing certain exceptions to such liability, including the affirmative defense in AR.S. § 12-820.03. 3 Accordingly, in Arizona, “the right to sue the [S]tate is not a statutory grant, as is the case in several other states; rather, it is a common law rule in Arizona that the government is liable for its tortious conduct and immunity is the exception.” Pritchard v. State, 163 Ariz. 427, 431 , 788 P.2d 1178, 1182 (1990); accord Galati v. Lake Havasu City, 186 Ariz. 131, 134 , 920 P.2d 11, 14 (App.1996) (“The

2014Plaintiffs note that trial testimony indicated that ACIC’s “decision [to deny plaintiffs’ claim] was based on Mr. Perry’s investigation and legal advice.” This argument, however, fails to show that ACIC ever expressly relied on the advice of counsel defense. ¶24 Turning to implied waiver based on a subjective evaluation of the law, Arizona “reject[s] the idea that . . . the denial of bad faith, or the affirmative claim of good faith may be found to constitute an implied waiver.” Lee, 199 Ariz. at 62, ¶ 28 , 13 P.3d at 1179 .

2014Plaintiffs note that trial testimony indicated that ACIC’s “decision [to deny plaintiffs’ claim] was based on Mr. Perry’s investigation and legal advice.” This argument, however, fails to show that ACIC ever expressly relied on the advice of counsel defense. ¶24 Turning to implied waiver based on a subjective evaluation of the law, Arizona “reject[s] the idea that . . . the denial of bad faith, or the affirmative claim of good faith may be found to constitute an implied waiver.” Lee, 199 Ariz. at 62, ¶ 28 , 13 P.3d at 1179 .

2023BLAIR/STATE Opinion of the Court ¶17 We have continually reaffirmed that “[t]he legislature has not provided for, and this Court has refused to allow, an affirmative defense of diminished capacity.” State v. Leteve, 237 Ariz. 516 , 524 ¶ 20 (2015); see also State v. Schantz, 98 Ariz. 200, 207 , 212–13 (1965) (considering and rejecting defense of diminished capacity and noting the legislature “has not recognized a disease or defect of mind in which volition does not exist . . . as a defense to a prosecution for” a crime).

2019See Mott , 187 Ariz. at 540 -41 , 931 P.2d at 1050-51 ; Schantz , 98 Ariz. at 212 , 403 P.2d at 529 ; see also A.R.S. § 13-502(A) ("A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.").

2024Rentco, 194 Ariz. 300, 302, ¶ 10 (App. 1999) (“The statute of limitations is an affirmative defense that is waived unless raised.”). ¶18 Mukherjee contends her incompetency excused her failure to raise an affirmative defense.

2014Uyleman, 194 Ariz. at 302, ¶ 10 , 981 P.2d at 1083 (“The statute of limitations is an affirmative defense that is waived unless raised.”). ¶24 ARFLP 34(A)(1) allows for a party to amend its pleading once as a matter of course prior to service of a responsive pleading, or if no responsive pleading is required, within twenty days following its service.

2023For a party to successfully assert issue preclusion as an affirmative defense, see Lakin Cattle Co. v. Engelthaler, 101 Ariz. 282, 284 (1966), it must show that (1) the issue at stake is the same in both proceedings; (2) the issue was actually litigated and determined in a valid and final judgment issued by a tribunal with competent jurisdiction; (3) the opposing party had a full and fair opportunity to litigate the issue and actually did so; and (4) the issue was essential to the judgment.

1971In Lakin Cattle Co. v. Engelthaler, 101 Ariz. 282 , 419 P.2d 66 (1966), our Supreme Court recognized the defense of res judicata as an affirmative defense which must be both plead and proved by the defendant.

2015Subsection (D) thus provides an affirmative defense to an (A)(3) charge. ¶ 12 In Harris, we held that “[d]rivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.” 234 Ariz. at 347 ¶ 24, 322 P.3d at 164 .

2015Subsection (D) thus provides an affirmative defense to an (A)(3) charge. ¶ 12 In Harris, we held that “[d]rivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.” 234 Ariz. at 347 ¶ 24, 322 P.3d at 164 .

2024Generally, failure to plead an affirmative defense at the superior court leads to waiver, City of Phoenix v. Linsenmeyer, 86 Ariz. 328, 333 (1959), but waiver is discretionary.

2006P. 8(c), 12(h); Double AA Builders, Ltd. v. Grand State Constr., LLC, 210 Ariz. 503, 510, ¶ 34 , 114 P.3d 835, 842 (App.2005); see also Wieman v. Roysden, 166 Ariz. 281, 286 , 802 P.2d 432, 437 (App.1990) (noting an affirmative defense not specifically pled is waived); City of Phoenix v. Linsenmeyer, 86 Ariz. 328, 333 , 346 P.2d 140, 143 (1959) (“Affirmative defenses are required to be pleaded to prevent surprise”).

2016We thus agree with Simpson that “[t]he ‘sexual interest’ provision of § 13-1407(E) is not an element of the offense of child molestation [or sexual abuse], but rather ‘create[s] an affirmative defense regarding motive.’” 217 Ariz. at 329 ¶ 19, 173 P.3d at 1030 (quoting State v. Sanderson, 182 Ariz. 534, 542 , 898 P.2d 483, 491 (App. 1995)).

2016We thus agree with Simpson that “[t]he ‘sexual interest’ provision of § 13-1407(E) is not an element of the offense of child molestation [or sexual abuse], but rather ‘create[s] an affirmative defense regarding motive.’” 217 Ariz. at 329 ¶ 19, 173 P.3d at 1030 (quoting State v. Sanderson, 182 Ariz. 534, 542 , 898 P.2d 483, 491 (App. 1995)).

2026Opinion of the Court Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565 , 576–77 ¶ 35 (1998); see also Lowe v. Pima Cnty., 217 Ariz. 642 , 650 ¶ 34 (App. 2008) (recognizing “equitable estoppel is an affirmative defense”). ¶53 Raba argues Connect’s earlier payment of the multiplier “expressed its unequivocal intent to waive” the Agreement’s requirement for any amendments to be in writing and was contrary to the Agreement’s express terms.

2026Opinion of the Court Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565 , 576–77 ¶ 35 (1998); see also Lowe v. Pima Cnty., 217 Ariz. 642 , 650 ¶ 34 (App. 2008) (recognizing “equitable estoppel is an affirmative defense”). ¶53 Raba argues Connect’s earlier payment of the multiplier “expressed its unequivocal intent to waive” the Agreement’s requirement for any amendments to be in writing and was contrary to the Agreement’s express terms.

2013As in National Bank of Arizona v. Thruston, 218 Ariz. 112, 119, ¶ 27 , 180 P.3d 977, 984 (App. 2008), Next Gen was not required to present evidence negating an affirmative defense by the non-moving party.

2013As in National Bank of Arizona v. Thruston, 218 Ariz. 112, 119, ¶ 27 , 180 P.3d 977, 984 (App. 2008), Next Gen was not required to present evidence negating an affirmative defense by the non-moving party.

2026Opinion of the Court Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565 , 576–77 ¶ 35 (1998); see also Lowe v. Pima Cnty., 217 Ariz. 642 , 650 ¶ 34 (App. 2008) (recognizing “equitable estoppel is an affirmative defense”). ¶53 Raba argues Connect’s earlier payment of the multiplier “expressed its unequivocal intent to waive” the Agreement’s requirement for any amendments to be in writing and was contrary to the Agreement’s express terms.

2026Opinion of the Court Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565 , 576–77 ¶ 35 (1998); see also Lowe v. Pima Cnty., 217 Ariz. 642 , 650 ¶ 34 (App. 2008) (recognizing “equitable estoppel is an affirmative defense”). ¶53 Raba argues Connect’s earlier payment of the multiplier “expressed its unequivocal intent to waive” the Agreement’s requirement for any amendments to be in writing and was contrary to the Agreement’s express terms.

2023BLAIR/STATE Opinion of the Court ¶17 We have continually reaffirmed that “[t]he legislature has not provided for, and this Court has refused to allow, an affirmative defense of diminished capacity.” State v. Leteve, 237 Ariz. 516 , 524 ¶ 20 (2015); see also State v. Schantz, 98 Ariz. 200, 207 , 212–13 (1965) (considering and rejecting defense of diminished capacity and noting the legislature “has not recognized a disease or defect of mind in which volition does not exist . . . as a defense to a prosecution for” a crime).

2018Because the legislature had purposely declined to adopt a 1962 Model Penal Code provision that permitted a diminished-capacity defense to a criminal charge, we concluded that "Arizona does not allow evidence of a defendant's mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime." Id . at 540-41, 931 P.2d at 1050-51 ; see also A.R.S. § 13-502 (allowing only mental disorders or defects that constitute legal insanity as a defense to criminal responsibility); Clark v. Arizona , 548 U.S. 735 , 762, 126 S.Ct. 2709 , 165 L.Ed.2d 842 (2006) ("

2016Where instead it excuse[s] conduct that would otherwise be punishable, but does not controvert any of the elements of the offense itself, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.” Smith v. United States, 133 S. Ct. 714, 719 (2013) (internal quotation marks and citations omitted); see Casey, 205 Ariz. at 366 ¶ 30, 71 P.3d at 358 (holding that “the legislature has the constitutional authority to shift the burden of proof” for an affirmative defense to the defendant); Farley, 199 Ariz. at 545 ¶ 13, 19 P.3d at 1261 (“although due process requires

2016Where instead it excuse[s] conduct that would otherwise be punishable, but does not controvert any of the elements of the offense itself, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.” Smith v. United States, 133 S. Ct. 714, 719 (2013) (internal quotation marks and citations omitted); see Casey, 205 Ariz. at 366 ¶ 30, 71 P.3d at 358 (holding that “the legislature has the constitutional authority to shift the burden of proof” for an affirmative defense to the defendant); Farley, 199 Ariz. at 545 ¶ 13, 19 P.3d at 1261 (“although due process requires

2002See State v. Moorman, 154 Ariz. 578 , 744 P.2d 679 (1987) (state may constitutionally require defendant to prove insanity defense by clear and convincing evidence); Sierra-Cervantes (defendant bears burden of proving self-defense); Farley (requiring defendant to prove justification defense constitutional under Arizona Due Process Clause); State v. Preston, 197 Ariz. 461 , 4 P.3d 1004 (App.2000) (requiring defendant to prove entrapment defense by clear *114 and convincing evidence does not violate Due Process, Clause); see also Martinez (defendant bears burden of proving elements of crime preve

2002See State v. Moorman, 154 Ariz. 578 , 744 P.2d 679 (1987) (state may constitutionally require defendant to prove insanity defense by clear and convincing evidence); Sierra-Cervantes (defendant bears burden of proving self-defense); Farley (requiring defendant to prove justification defense constitutional under Arizona Due Process Clause); State v. Preston, 197 Ariz. 461 , 4 P.3d 1004 (App.2000) (requiring defendant to prove entrapment defense by clear *114 and convincing evidence does not violate Due Process, Clause); see also Martinez (defendant bears burden of proving elements of crime preve

2016In rejecting the State’s argument that the affirmative defense in § 13-1407(B) changed the elements of sexual abuse, this Court noted there could be “constitutional ramifications of superimposing the affirmative defense statute into the definitional statute.” Id. at 565, 944 P.2d at 507 .

2016In rejecting the State’s argument that the affirmative defense in § 13-1407(B) changed the elements of sexual abuse, this Court noted there could be “constitutional ramifications of superimposing the affirmative defense statute into the definitional statute.” Id. at 565, 944 P.2d at 507 .

1988That argument starts from the proposition that constitutionally the burden of proof of an affirmative defense may be on the defendant, Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987), so long as the defense is not inconsistent with an element of the offense as defined by state law.

1988That argument starts from the proposition that constitutionally the burden of proof of an affirmative defense may be on the defendant, Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987), so long as the defense is not inconsistent with an element of the offense as defined by state law.

2007See Hurt, 124 Ariz. at 49 , 601 P.2d at 1333 (paternity in wrongful death case “can be determined at a pretrial hearing on the issue of the plaintiffs capacity to sue”); Salinas, 2 Ariz.App. at 186 , 407 P.2d at 125 (capacity to sue “should be raised prior to trial”). ¶ 28 Although we acknowledge the authority suggesting lack of capacity to sue is an affirmative defense, placing the burden on the plaintiff once the defendant raises the issue is consistent with the wrongful death statutes, the access of the parties to the necessary information, and dicta in Cassidy’s Estate.

2007See Hurt, 124 Ariz. at 49 , 601 P.2d at 1333 (paternity in wrongful death case “can be determined at a pretrial hearing on the issue of the plaintiffs capacity to sue”); Salinas, 2 Ariz.App. at 186 , 407 P.2d at 125 (capacity to sue “should be raised prior to trial”). ¶ 28 Although we acknowledge the authority suggesting lack of capacity to sue is an affirmative defense, placing the burden on the plaintiff once the defendant raises the issue is consistent with the wrongful death statutes, the access of the parties to the necessary information, and dicta in Cassidy’s Estate.

2002Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991); see also City of Yuma v. Evans, 85 Ariz. 229, 233 , 336 P.2d 135, 138 (1959) (The defense of governmental immunity “must be specially pleaded ... and [ ] cannot be urged for the first time on appeal.”); Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st Cir.1996) (“Qualified immunity is an affirmative defense, and the ‘burden of pleading it rests with the defendant ... [and] failure to do so can work *379 a waiver of the defense.’ ”) (citations omitted). 10 ¶ 66 Our resolution of the issues means that Flanders will

2002Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991); see also City of Yuma v. Evans, 85 Ariz. 229, 233 , 336 P.2d 135, 138 (1959) (The defense of governmental immunity “must be specially pleaded ... and [ ] cannot be urged for the first time on appeal.”); Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st Cir.1996) (“Qualified immunity is an affirmative defense, and the ‘burden of pleading it rests with the defendant ... [and] failure to do so can work *379 a waiver of the defense.’ ”) (citations omitted). 10 ¶ 66 Our resolution of the issues means that Flanders will

2022“The affirmative defense of a statute of limitations may be raised in a motion to dismiss if it appears on the face of the complaint that the claim is barred.” Republic Nat’l Bank of N.Y. v. Pima County, 200 Ariz. 199, ¶ 20 (App. 2001). ¶7 Claims brought against “any public entity” are subject to a one-year statute of limitations.

2018We will affirm the dismissal “if we are satisfied as a matter of law that plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.” Chalpin v. Snyder, 220 Ariz. 413, 418, ¶ 18 (App. 2008) (internal quotation marks omitted). ¶8 “The affirmative defense of a statute of limitations may be raised in a motion to dismiss if it appears on the face of the complaint that the claim is barred.” Republic Nat’l Bank of New York v. Pima Cty., 200 Ariz. 199, 204, ¶ 20 (App. 2001).